THE 


LAW  or  NEW  TRIALS 


AND 


OTHER  REIIEARINGS; 


INCLUDING 


WRITS  OF  ERROR,  APPEALS    ETC. 


BY 

FEA^^CIS  HILLIAED, 

AUTHOR  OP  "the  law  OP  INJUXCTION'S,"  "THE  LAW  OF  T0ar3,"  "THE  LAW  OF 
C0STRACT3,"  ETC.  ETC. 


SECOND  EDITION,  EEVISED  AND  GREATLY  ENLARGED. 


PHILADELPHIA: 
KAY  &  BROTnER,  19  SOUTH  SIXTH  STREET, 

LAW  PUBLISUEKS,  BOOKSELLERS,  AND  IMPOKTEKS. 
1872. 


T 
H5- 


Entered  according  to  act  of  Congress,  in  the  year  186(3,  by 

FRANCIS   HILLIARD, 

in  the  Clerk's  Office  of  the  District  Court  for  the  District  of  Massachusetts. 


Entered  according  to  Act  of  Congress,  in  the  year  1872,  by 

FRANCIS    HILLIARD, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington, 


PHILADELPHIA  : 
COLLINS,  PIU.NTER,  705  JAYNE  STREEX. 


t; 


PEEFACE 


A  TREATISE  upon  Trials,  generally,  would  be 
equivalent  to  a  summary  of  the  whole  civil  and 
criminal  law;  because  rules  and  principles  no 
further  constitute  the  laio,  in  a  practical  sense,  than 
as  they  are  brought  to  the  practical  test  of  judi- 
cial investigation.  It  is  far  otherwise,  however, 
with  JVew  Trials,  which  form  a  specific  subject, 
lying  within  a  comparatively  narrow  compass, 
and,  like  other  single  branches  of  jurisprudence, 
appropriately  treated  by  itself  alone. 

It  is  a  fact  not  generally  understood  and  appre- 
ciated, with  how  great  reluctance,  and  after  how 
many  attempts  at  amicable  settlement,  parties 
generally  enter  upon  a  lawsuit,  or,  to  use  the  com- 
mon expression,  go  to  law.  If  the  full  history 
were  given,  of  a  large  part  of  the  harshest  claims 
or  the  most  inequitable  defences,  ever  brought 
forward  in  a  court  of  justice ;  it  would  probably 
be  found,  that  they  have  been  preceded  by  per- 
sistent efibrts,  on  one  side  or  the  other,  or  perhaps 
both,  to  accomplish  by  negotiation  the  same  end 


67i42B 


IV  PREFACE. 

which,  as  a  last  resort,  is  sought  by  litigation. 
But,  having  once  embarked  upon  this  stormy  sea ; 
after  so  uuAvillingly  encountering  the  publicity, 
the  expense,  the  general  wear  and  tear  of  a  law- 
suit; it  is  quite  natural  that  parties  should  be 
slow  to  withdraw  from  a  field,  reluctantly  entered, 
until  they  have  exhausted  all  the  opportunities  for 
rehearing  which  the  law  alloAvs  them.  Hence 
the  great  importance  of  the  Law  of  Kew  Trials ; 
by  virtue  of  which,  a  party  confident  in  the  justice 
of  his  own  claim  or  defence,  though  at  the  outset 
willing  to  concede  much  for  the  sake  of  a  settle- 
ment, may  perchance  correct  the  error,  and  reverse 
the  injustice,  of  the  first  decision  against  him. 

The  favorite  institution  of  the  American  people 
is  Trial  hy  Jury.  IS'otwithstanding  the  now  very 
general  statutory  provisions,  by  which,  with  the 
consent  of  parties,  this  mode  of  trial  may  be  dis- 
pensed with ;  it  is  extremely  rare  to  find  cases 
tried  in  any  other  way.  The  same  reasons,  which 
might  lead  one  party  to  dispense  with  a  jury,  are 
those  which  recommend  it  the  most  strongly  to 
the  other.  If  both  relied  upon  the  strict  rules  of 
law,  then  both  would  prefer  a  trial  by  the  judge. 
On  the  other  hand,, if  both  distrusted  the  applica- 
tion of  such  rules  to  the  facts  of  the  case ;  then 
they  would  mutually  agree  in  preferring  a  tribunal 
before  which  circumstances  and  equities  might  be 


PREFACE. 


made  to  control  mere  technical  or  abstract  prin- 
ciples. Fraud,  negligence,  limitation,  estoppel, 
license,  forfeiture,  and  numerous  other  grounds  of 
action  or  defence,  which  will  suggest  themselves 
at  once  to  every  legal  mind,  furnish  to  one  or  the 
other  party  occasions  and  inducements  for  the 
trial  by  jury,  which  supersede  all  reasons  of  pre- 
ference for  a  direct  appeal  to  the  court  alone. 

Moreover,  a  large  proportion  of  all  law  cases 
involve  more  or  fewer  points,  which  some  out  of 
twelve  jurors  will  be  likely  to  understand  better 
than  either  counsel  or  judge.  Such  are  questions 
of  money  calculation,  value  and  price,  for  brokers 
and  merchants ;  of  construction  and  mechanism, 
for  mechanics ;  and  of  agriculture,  for  farmers ; 
with  reference  to  all  of  which,  a  skilful  advocate 
or  a  learned  judge  often  takes  great  satisfaction 
in  the  consciousness,  that  the  suggestions  which 
he  may  make  to  the  jury,  as  the  result  of  his 
temporary  investigations  into  the  subject-matter 
of  the  cause,  will  be  fully  understood  and  appre- 
ciated by  those  of  whom  habit  and  experience 
have  been  the  most  effectual  teachers. 

The  trial  by  jury  is  also  recommended  to  pop- 
ular preference  by  the  considerations,  that  the 
parties  and  w^itnesses  are  generally  known  to  some 
or  all  of  the  jurors,  who  will  apply  the  incidental 
and  collateral  aid  derived  from  this  source  to  an 


Vi  PREFACE. 


explanation  of  the  controverted  facts  in  the  case  ; 
and  that  the  very  inexperience  of  a  jury  in  trials 
at  law  will  lead  them  to  watch  carefully  the  ap- 
pearance, deportment,  and  testimony  of  witnesses, 
and  sometimes  to  make  just  discriminations, 
wliicli  would  be  less  likely  to  occur  to  minds  more 
habituated  to  this  mode  of  investigation. 

Trial  by  jury,  therefore,  is  not  likely  to  fall  into 
disuse ;  and,  so  long  as  it  remains  a  fixed  institu- 
tion in  American  law,  so  long  will  the  subject  of 
New  Trials  retain  its  interest  and  importance.  I^o 
le2:islation,  however  discreet,  or  administration  of 
the  law,  however  careful,  can  ever  wholly  prevent 
the  irregular  drawing  or  impanelling  of  jurors; 
the  improper  allowance  or  refusal  of  the  right  of 
challenge;  the  unlawful  separation  of  juries,  or 
their  misconduct  in  or  out  of  the  jury-room;  or 
fraudulent  attempts,  by  parties,  counsel,  or  third 
persons,  to  influence  their  verdict:  of  all  which 
irregularities  a  New  Trial  is  the  legitimate,  and 
indeed  the  only  corrective.  Thus  only,  moreover 
— through  careful  revision  of  those  legal  proposi- 
tions, which  the  presiding  judge  laid  down  for  the 
government  of  the  jury,  in  the  hurry  of  a  trial, 
without  opportunity  for  the  examination  of  decided 
cases,  and  rarely  with  entire  confidence,  on  his  own 
part,  in  their  correctness — can  the  law  and  fact, 
which  enter  into  the  composition  of  every  trial,  be 


PREFACE.  Vll 

.corrected  and  harmonized  for  purposes  of  substan- 
tial justice.  In  this  mode  alone,  also,  can  the  rules 
of  evidence — a  branch  of  the  law  at  once  more 
abounding  in  subtle,  metaphysical,  and  philoso- 
phical distinctions,  and  of  more  constant  and  uni- 
versal practical  application,  than  any  other — be 
carefully  discussed  and  correctly  settled.  And 
finally,  as  the  trial  by  jury,  with  all  its  indisputa- 
ble merits,  is  from  its  very  nature  impulsive,  hasty, 
liable  to  undesigned  error  and  wilful  wrong,  to 
prejudice,  partiality,  and  corruption ;  through  the 
medium  of  a  new  trial,  an  aggrieved  party  may 
seek  relief  from  a  verdict  rendered  without  or 
against  evidence,  may  have  opportunity  to  supply 
omissions  or  defects  which  no  prior  vigilance  could 
have  anticipated  or  guarded  against,  and  may 
reduce  the  amount  of  damages,  which,  through 
mistake  or  design,  have  been  wrongly  awarded 
against  him. 

!N^ew  Trial,  although  by  far  the  most  frequent 
and  simple,  is  but  one,  of  several  forms  of  rehear- 
ing. Of  the  other  modes — error,  certiorari,  a^ypeal, 
audita  querela,  and  maiidamus — it  seemed  j)ro2Der, 
by  way  of  sequel  to  the  body  of  the  following- 
work,  to  present  a  summary  view,  which  has  ac- 
cordingly been  done  in  a  chapter  devoted  to  each. 


Viii  PREFACE. 

The  general  rules  of  law  upon  the  subject  of 
]S"ew  Trials  have  been  modified  to  a  very  limited 
extent  by  express  statutes.  The  leading  statutory 
provisions  in  the  several  States  will  be  found  in 
the  Appendix.  For  the  reason  stated  at  the  com- 
mencement of  the  Appendix,  statutes  relating  to 
the  other  topics  are  omitted. 

F.  H. 

1866. 


PREFACE  TO  THE  SECOND  EDITION. 

To  this  Edition  very  numerous  cases  have  been 
added,  enlarging  the  volume  by  one  hundred  and 
fifty  pages. 

F.  H. 

1873. 


CONTENTS. 


CHAPTER  I. 
Definition,  &c.,  of  New  Trial      ....     1—19 

1.  Definition. 

2.  History. 

4.  Importance. 

6.  Mode  of  obtaining  ;  discretion  ;  appeal ;  error,  &c. 

16.  Form  of  proceeding  ;  rule  to  show  cause  ;  bill  of  exceptions,  &c. 

17.  Other  forms  of  rehearing. 
24.  Habeas  corpus. 

CHAPTER  II. 
Grounds  of  ISTew  Trial -0-^^ 

1.  General  gvonnds—deJwrs  the  record. 

2.  Verdict  presumed  correct ;  motion  for  new  trial  must  show  affir- 

matively the  ground  of  alleged  error. 
13.  Qualifications  of  this  rule.  » 

15.  Form  of  exceptions,  founded  upon  the  foregoing  rule. 
18.  Amendment  of  bill  of  exceptions. 

25.  Limitations  of  the  rule. 

26.  Other  evidence  as  to  the  points  contained  in  the  bill  of  exceptions. 

28.  Motion  in  arrest  of  judgment. 

29.  Writ  of  error. 

CHAPTER  III. 

Ground  of  New  Trial— Harmless  Error— Sub- 

T  40-64 

STANTiAL  Justice -iv  'j-± 

1.  Party  must  have  been  injured. 

2.  Erroneous  ruling  of  the  court. 

6.  Admission  or  rejection  of  evidence. 

7.  Jury. 

8.  Surprise. 


X  CONTENTS. 

9.  New  evidence,  &c. 

10.  Limitation  of  the  rule — it  ymist  appear  that  no  injury  has  been 

done. 

11.  Substantial  justice  done. 

12.  Erroneous  rulings. 

13.  Errors  in  relation  to  evidence. 

14.  Verdict  against  evidence. 

15.  Newly-discovered  evidence. 

16.  Surprise. 

17.  Damages. 

18.  Liniilutions  of  the  rule. 

CHAPTER  IV. 

Terms  of  Granting  a  New  Trial         .        .        .     65-73 

1.  Costs. 

8.  Other  terms — new  trial  in  part — miscellaneous. 

13.  Terms,  as  affected  by  the  form  of  action, 

15.  Refusal  of  terms. 

IG.  Terms  imposed  upon  prevailing  jmrty. 

19.  Abandonment  of  exceptions. 

CHAPTER  V. 

Nature  and  Effect  of  the  Motion  for,  and  the 
Granting  of,  a  New  Trial;  Points  of  Prac- 
tice ;  Successive  ISTiiw  Trials  ....     74-81 

CHAPTER  VI. 
Waiver 82-112 

1.  General  rule. 

2.  Incompetency,  etc.,  of  jurors. 
7.  Evidence. 

13.  Written  evidence. 

15.  Miscellaneous  points  of  evidence. 

20.  Erroneous  rulings. 
24.  Surprise. 

29.  New  evidence. 

30.  Excessive  damages. 

31.  Miscellaneous  cases. 
33.  Negligence  of  counsel. 
33?i.  "Waiver  in  respect  to  time. 


CONTENTS.  XI 

CHAPTER  VII. 
New  Trial  in  Criminal  Cases     .        .        .         113-120 

1.  General  rule. 

5.  Bill  of  exceptions. 

6.  Whether  there  can  be  a  new  trial  after  acquittal ;  constitutional 

provisions. 
9.  Or  even  after  conviction. 
10.  Miscellaneous. 

CHAPTER  VIII. 

Grounds  of  New  Trial — Grounds  Relating  to 

the  Jury  ;  Verdict 121-153 

1.  General  grounds — irregularity  and  injustice. 
10.  General  and  special  verdicts. 

19.  Form  of  verdict— uncertainty,  generality,  inconsistency,  &c. 
30.  Amendment  of  verdict ;  sending  back  of  jury,  remittitur. 

CHAPTER  IX. 

Jury  ;  Irregularities  connected  with,  as  Grounds 
OF  New  Trial — Incompetency        .        .        .     154-197 

1.  General  principle. 

8.  Presumption  of  competency. 

4.   Challenge  and  new  trial  compared. 

8.  Agreement  of  jury  ;  mode  of  proof  on  the   subject ;  affidavits  ; 

modes  of  arriving  at  the  verdict,  &c. 
14,  18.  Incompetency  of  juror. 
17.  Swearing. 
23.  Aliens. 

23.  Drawing  and  impanelling. 
26.  Misnomer. 
29.  Talesmen. 

31.  Change  of  jurors. 

32.  Partiality  ;  preconceived  opinion ,  examination  on  voir  dire,  &c. 
52.  Relationship. 

59.  Other  connections  with  a  party. 

60.  Interest ;  inhabitants  of  a  county  or  town  ;  meaibers  of  an  asso- 

ciation ;  miscellaneous  cases. 
72.  Opinions  of  juror  ;  conscientious  scruples. 


XU  CONTENTS. 

CHAPTER  X. 
Jury.     ^Misconduct 198-252 

1.  General. 

2.  Eating  ami  drinking  ;  use  of  intoxicating  liquor. 

5.  Sleep. 

6.  Conversation  concerning  the  case  ;  statements  of  one  juror  to  the 

rest. 

18.  Custody  of  the  jury. 

19.  Introduction  of  papers  to  the  jury-room  ;  minutes,  Looks,  depo- 

sitions, records,  &c. 
37.  Further  instructions  to  the  jury. 

40.  Arguments  to  the  jury. 

51.  Separation  of  the  jury. 
G8.  AfDdavits  of  jurors. 

CHAPTER  XI. 

Erroneous  Rulings  or  Instructions         .        .    253-388 

1.  General  rule. 
5.  Omissions. 

9,  52,  58.  Immaterial  or  irrelevant  instructions. 
15.  Ambiguity. 

18.  Conflicting  instructions. 

19.  Misunderstood  instructions. 

23.  Instructions  construed  together. 

26.  Adoption  of  language  of  the  court  above. 

28.  Uncertainty. 

30.  Law  and  fact. 

32,  77.  Refusal  or  granting  of  a  nonsuit. 

35.  Ruling  by  which  evidence  was  rendered  unnecessary. 

37.  As  to  sufficiency  or  insufficiency  of  evidence. 

39.  Conflict  of  evidence,  or  the  reverse. 

41,  72,  139.   Tendency  and  effect  of  the  evidence. 

43.  Instructions  as  to  the  law — limitations. 

44.  Preliminary  remarks,  <tc.,  to  the  jury  ;  comments  upon  the  evi- 

dence ;  illustrations. 

52.  Materiality  of  the  remarks. 

53.  Refusal  to  comment  upon  the  evidence. 

54.  Exceptions  to  the  prevailing  rule  ;  erroneous  interference  with 

the  facts  and  evidence. 

55.  Instructions  as  to  onl}'  part  of  the  case. 

56.  Instructions  based  on  the  evidence. 


CONTENTS.  XIU 

58.  Abstract  instructions. 

59.  iMiscellancous  points. 

63.  Presumptions  from  foots  proved. 

63.  Instructions  as  affected  by  the  pleadings. 

64.  In  reference  to  the  arguments. 

65.  lyiiscellaueous. 

67.  Questions  of  law  and  fact. 

69.  Undisputed  facts  ;  questions  of  law. 

72.  Weight  of  evidence,  &c.,  for  the  jury. 

73.  Law  and  fact  in  criminal  cases. 

77.  Absence  of  evidence  ;  question  of  law ;  nonsuit. 

79.  Construction  of  written  and  oral  contracts  ;  wills  ;  policies  ;  leases. 

84.  Legality  of  contracts. 

85.  Records. 

86.  Contracts  and  writings,  when  questions  of  fact,  or  mixed  ques- 

tions  of  law   and  fact ;    technical  terms  ;    lost    instruments  ; 
patents. 

93.  Usage. 

94.  Reasonableness. 
98.  Payment. 

101.  Limitation. 

103.  Usury. 

103.  Notes,  &c. 

104.  Miscellaneous  contracts. 
107.  Notice. 

107a.  Questions  relating  to  land. 

116.  Delivery. 

117.  State  of  mind  ;  intention  ;  identity. 

130.  Miscellaneous. 

121.  Partnership;  agency;  sale. 
123.  Mixed  questions  ;  miscellaneous. 

136.  Fraud. 

131.  Malice. 
133.  Libel,  &c. 

133.  Malicious  prosecution. 

134.  Negligence,  &c. 
1366.  Nuisance. 
136c.  Cruelty. 

137.  Waiver. 

139.  Credit  of  witness,  &c.,  and  other  points  relating  to  testimony; 

weight  of  evidence  ;  comparative  weight  of  different  kinds  of 

evidence. 
156.  Communications  of  the  judge  to  the  jury  out  of  the  regular  course  ; 

time  of  objecting  to  instructions. 
164.  Instructions  as  to  costs  and  damages. 
167.  Prayer  or  request  for  instructions. 


XIV  CONTENTS. 

CHAPTER  XII. 
Discretion .    389-406 

1.  General  rule — examples. 

5.  Order  of  testimony  ;  examination  of  witnesses  ;  depositions ;  re- 
calling "witness  ;  leading  questions. 

CHAPTER  XIII. 

Evidence — Admission  ok  Rejection  of  Evidence  407-443 

1.  General  rule. 

2.  Effect  of  an  instruction  to  disregard  incompetent  evidence,  &c. 
4.  Irrelevant  or  immaterial  evidence. 

11.  Cumulative  evidence. 

15.  Conflicting  evidence. 

16.  Infamy  of  witness. 

17.  Incompetent  question. 
19.  Secondary  evidence. 

21.  Admission,  as  affecting  the  course  of  trial. 

22.  Purpose  of  offering  the  evidence,  as  affecting  its  competency. 
27.  Miscellaneous. 

30.  Writings,  hearsay,  secondarj^  evidence. 

34,  42.  Evidence  connected  with  other  evidence. 

39.  Reasons  for  rejecting  evidence. 

40.  Trial  by  the  court,  or  upon  writ  of  inquiry. 

41.  Interlocutory  proceedings. 

43.  Evidence  as  connected  with  the  pleadings. 
49.  Whether  evidence  must  be  confined  io  facts. 

52.  Jlay  come  from  either  part}\ 

53.  Must  be  regularly  offered. 

54.  Must  be  objected  to;  form  of  objection. 
60.  Questions  of  time. 

70.  Depositions. 

72.  Set-off. 

73.  Practice  in  New  York. 
75.  Waiver. 

CHAPTER  XIV. 
Verdict  against  Evidence        ....     444-490 

1.  General  rule. 

2.  Pleadings — variance. 
4.  By  court  above. 


CONTENTS.  XV 

7.  Additional  grounds. 

8.  In  reference  to  a  particular  fact. 

9.  Limitations  of  the  rule  ;  the  case  must  be  strong. 
13.  Deficiency  of  evidence. 

15.  Court  above. 
17.  Report  of  the  evidence. 

19.  Preponderance  of  evidence  ;  weight  of  testimony ;  credibility  of 
witnesses;  case  passed  upon  by  the  jury;  improper  bias,  &c. 

27.  Absence  of  evidence. 

28.  Balance  of  testimony  ;  credit  of  witnesses. 
31.  Number  and  relation  of  witnesses. 

3G.  Misunderstanding  of  the  case. 

37.  Verdict  founded  upon  some  evidence  ;  upon  vague  and  suspicious 

evidence. 
40.   Verdict  for  the  defendant  without  evidence. 
42.  For  the  plaintiff  without  evidence. 

44.  Or  against  clear  evidence  for  the  defendant. 

45.  Circumstantial  evidence. 

50.  Evidence  by  inspection. 

51.  In  reference  to  language. 

52.  Successive  verdicts. 

57.  Demurrer  to  evidence. 

58.  Perverse  verdict. 

59.  In  what  classes  of  cases. 

60.  Criminal  cases  ;  penal  actions  ;  fraud. 

64.  Substantial  justice. 

65.  Trifling  cases. 

66.  No  benefit  to  the  party. 

67.  Trial  by  the  court ;  verdict  by  consent ;  award. 
71.  Questions  of  law. 

75.  Verdict  satisfactory  or  otherwise  to  the  judge. 


CHAPTER  XV. 
Newly-Discovered  Evidence    ....    491-520 

1.  General  rule. 

4.  Remarks  of  courts. 

6.  Diligence  must  be  proved. 

.  7.  Forget  fulness. 

9.  Documentary  evidence. 

11.  Ignorance  of  counsel. 

13.  Cumulative  evidence. 

19.  Evidence  to  impeach,  contradict,  or  otherwise  affect  a  witness. 


Xvi  CONTENTS. 

28.  Questions  of  amount. 

29.  Questions  of  form. 

30.  To  prove  a  crime. 

31.  Court  above. 

35.  Form  of  application,  afiidavits,  statement  of  evidence,  hearsay,  &c. 
40.  Materiality  and  credibility. 


CIIArTER  XVI. 
Surprise  521-560 

1.  General  rule. 

2.  In  criminal  cases. 

4.  Second  motion  for  new  trial. 

5.  Discretion — court  above. 

5«.  For  cause  arising  after  verdict. 

6.  Justice  done. 

7.  Laches. 

8.  Terms. 

9.  Concurrent  with  other  grounds. 

10.  Threats,  «&c.,  preventing  a  defence. 

11.  Mistake  of  law. 

13.  Ignorance  of  fact. 

14.  Sickness. 

15.  Absence  of  party. 

16.  Erroneous  notice  for  trial. 
24.  Premature  trial. 

28.  Absence,  &c.,  of  witness. 
35.  Testimony  given  or  omitted. 

44.  Want  of  preparation. 

45.  Rejection  or  admission  of  evidence. 

46.  Credibility  of  witness. 

48.  ]\Iisconduct  of,  or  tampering  with,  witness. 

49.  Papers. 

50.  Pleadings. 

51.  Perjury. 

52.  59.  Nonsuit. 

53.  Absence,  &c.,  of  counsel. 

60.  Delay,  withdrawing  juror. 

61.  Default. 

62.  Waiver. 

66.  Depositions,  &c. 

68.  Affidavits. 

73.  Delay  in  motion. 


CONTEXTS.  XVll 

CIIArTER  XA^II. 
Amount  of  Damages 561-586 

1.  General  rule. 

2.  Cautiously  applied — remarks  of  judges. 

3.  Exemplary  damages. 

4.  Second  new  trial. 

5.  Declaration. 

6.  Law  and  fact. 

8.  Joint*defcndaut3. 

9.  Fault  of  party — waiver. 

10.  Sliglit  excess — opinion  of  judge,  A:c. — dissatisfaction. 

13.  Court  above. 

14.  Calculation  of  amount ;  basis  of  calculation. 
19.  Nominal  damages. 

23.  Too  small  damages. 

29.  Partial  new  trial. 

30.  BemiUui\  &c. 

32.  Assault. 

33.  False  imprisonment. 

34.  Negligence. 

35.  Libel,  &c. 

40.  Malicious  prosecution. 

41.  Trespass  qu.  claus. 

42.  Watercourse. 

43.  Breach  of  promise. 

44.  Seduction,  &c. 


CHAPTER  XVIII. 
Xew  Trials  in  Equity 587-617 

1.  General  remarks. 

2.  Mode  of  proceeding — injunction. 

3.  Special  grounds  must  be  sliown. 

7.  Amount  of  judgment. 

8.  Form  of  decree. 

9.  Judgment  in  anotber  State. 
10.  Terms. 

14.  Successive  injunctions. 

15.  Time. 

16.  Laches — neglect,  delay,  ifcc. 

19.  Pleadings. 

20.  Exceptions  to  the  strict  rule. 

9 


XVI 11  CONTENTS. 

21.  Accident,  mistake,  &c. 

22.  Fraiul. 

24.  Formal  errors. 
2G.  Default. 
27.  Confession. 

30.  Compromise. 

31.  Award. 

32.  New  evidence. 

34.  In  part. 
40.  Paj-mcnt. 

42.  Set-off. 
45.  Estoppel. 
40.  Pleading's. 
4Ga.  Parties. 

52.  Title  to  lands. 

53.  Surety. 

54.  Trust. 

55.  Execution. 

CHAPTER  XIX. 

Other  forms  of  Rehearing  than  Xew  Trial — 
Writ  of  Error 618-685 

1.  General  remarks.     Peculiarities  of  American  law. 

2.  Nature  of  a  writ  of  error. 

3.  Ex  dehito  justitm. 

5.  A  new  action. 

6.  Writ  of  error,  and  motion  in  arrest  of  judgment. 

7.  Judgment  must  be  according  to  the  course  of  the  common  law. 

8.  Qualifications  of  this  rule. 

9.  Special  proceedings  ;  whether  error  lies. 

10.  Grounds  of  the  writ. 

11.  Mere  irrerjulurity. 

12.  Whether  for  acts  after  judgment.     Executions. 
13    Error  oi  foundation.,  pi'oceedinff,  or  judgment. 

18.  Error  coram  nobis  or  coram  vohis. 

19.  Error  of  laio  and  of  fact. 

24.  A  remedial  ]M-ocess  ;  construction  of  statutes. 

25.  Cases  of  discretion. 

26.  Questions  of  amount ;  ad  damnum.,  interest,  costs,  etc. 
32.  Defects  in  the  declaration  ;  variance  ;  misjoinder,  &c. 

35.  Right  ol'  appeal,  whether  a  writ  of  error  lies  in  case  of. 

43.  The  judgment  must  he  final. 

50.  The  plaintiff  in  error  must  have  been  injured  1>y  the  judgment 
voluntary  nonsuit,  &c. 


CONTENTS.  XIX 

53.  The  error  must  bo  substantial,  not  mcw\y  formal ;  limitations  and 
qualifications  of  the  rule;  judgment  in  favor  of  the  plaintilf  in 
error. 

58.  The  error  must  appear  upon  the  record  ;  what  constitutes  the 
record ;  iiapers  used  or  filed,  parol  evidence,  &c. 

63.  The  eri-or  must  appear,  affirmatively.     Judgment  presumed  to  be 

correct. 

64.  When  the  right  to  a  writ  of  error  is  waived. 

68.  Error  in  case  of  default. 

69.  For  want  of,  or  defect  in,  service  of  the  writ  ;  joint  defendants,  &c. 
74.  In  case  of  arbitration. 

77.  Efffect  of  a  writ  of  error  upon  the  judgment  and  the  rights  of  the 

parties  ;  supei'sedeas  of  execution,  &c. 
80.  Course  of  proceeding  upon  a  writ  of  error  ;  assignment  of  errors  ; 
allegations  of  the  writ,  &c. 

103.  Parties  ;  must  be  interested  ;  joint  parties  ;  in  case  of  death  ;  pur- 
chasers, creditors,  agents,  &c. 

116.  Summons  and  severance. 

134.  Misnomer. 

136.  Service  of  writ  of  error. 

139.  Defences  ;  dismissal ;  in  nullo  est  erratum  ;  release  of  errors. 

158.  Judgment  upon  a  writ  of  error  ;  reversal  in  part ;  remanding  of 
the  case,  and  proceediiags  of  the  court  below  ;  miscellaneous 
points. 

188.  Successive  writs  of  error. 

196.  Errors  in  criminal  cases. 

CHAPTER  XX. 
Certiorari 686-G99 

1.  Definition,  nature,  and  purpose. 

6.  What  is  to  be  reviewed. 

7.  Distinction  between  error  and  certiorari. 

8.  Lies  only  upon  pending  proceedings. 

9.  Not  a  writ  of  right — discretionary. 

12.  The  proceeding  must  be  a  judicial  one. 

13.  Relates  to  the  legality  and  regularity  of  the  proceedings  reviewed. 

14.  Supersedeas. 

15.  Jurisdiction  of  the  court  below. 

16.  Questions  of  law  and  of  luct. 
19.  Return  to  the  writ. 

23.  Does  not  lie  where  there  are  other  remedies  ;  appeal. 

25.  In  criminal  cases. 

26.  Parties. 


XX  CONTENTS. 

26«.  To  justices  of  the  peace. 
o2.  Form  of  petition  aud  affidavit. 
43.  Miscelluueous. 

CHAPTER  XXI. 
Appeal ,        .     700-763 

1.  Definition. 

2.  In  the  United  States  ;  statutory  law. 

3.  A  statutory  remedy  ;  the  statutes  must  be  strictly  complied  "n'ith ; 

time,  &c. 
G.  A  continuation  of  the  original  suit ;  notice,  &c. 
7.  Questions  as  to  right  of  appeal ;  process  in  connection  therewith ; 

constitutional  right. 
13.  Issue,  default,  &c. 
17.  Restricted  right  of  appeal ;   title  to  land,  &c.  ;    construction  of 

statutes. 
20.  From  a  favorable  judgment,  &c. 
22.  As  connected  with  other  forms  of  rehearing  ;  error,  injunction, 

review,  audita  querela,  &c. 

32.  Proceedings  must  be  judicial.  ^ 

33.  In  case  of  habeas  corpus. 

34.  Mandamus. 

35.  Contempt. 

30.  There  must  be  a  judgment. 

37.  The  judgment  must  he  final,  not  interlocutor}- ;  qualifications  and 

exceptions ;  what  is  a  final  judgment. 
4G.  Discretionary  judgments. 

49.  Neglect  and  waiver  ;  objections  not  raised  in  the  court  below. 
61.  Questions  oi  jurisdiction. 
71.  Effect  of  an  appeal ;  suspends  or  vacates  the  judgment:  irregular 

or  void  appeal ;  neglect  to  enter  or  prosecute. 
78.  Course  of  proceeding  in  the  appellate  court ;  whole  case  reopened  ; 

limitations  of  this  rule ;  pleadings,  evidence,  ttc. 
89,  Dismissal  of  an  appeal. 
99.  Remanding  of  the  case. 
104.  Parties  ;   persons  interested ;  joint  parties ;   executors,  assignees. 

Sec. 
118.  Amo^lnt  of  judgment ;  jurisdiction,  ttc. 
131.  Return  of  papers  by  the  court   below ;  copies,  originals,  papers 

filed,  &c. 
145.  Bond  and  recognizance. 
156.  Payment  of  fees. 
170.  Successive  appeals. 


CONTENTS.  XXI 

CIIArTER  XXII. 
Audita  Querela 764-773 

1,  Definition  ;  for  the  most  part  obsolete. 

2,  As  connected  with  other  modes  of  revision. 
G.  General  nature  and  objects. 

8.  Lost  by  neglect. 

9.  Absent  defendant ;  default. 
13.  Imprisonment. 

15.  Payment  of  judgment. 
18.  Parties. 
24.  Practice. 

CHAPTER  XXIII. 
Mandamus 774-786 

1.  Definition,  &:c. 

2.  Does  not  lie  in  case  of  other  remedies. 

4.  Parties. 

5.  As  connected  with  appeal,  error,  &c. 
8.  Designed  to  compel  action. 

10.  Lies  only  to  a  continuing  tribunal. 

11.  Constitutional  questions. 

12.  In  reference  to  new  trial,  exceptions,  &c. 

13.  Miscellaneous  cases. 

Appendix — Statutes 789-796 


TABLE  OF  CASES  CITED. 


PAGE 


A. 

Aaron  v.  State 
Abbott  V.Abbott 
V.  Bvilt 
V.  Parsons 
Abel  V.  Burgett 
Abies  V.  Donley 
Abney  v.  Carter 
Acby  V.  Rapalye 
Acbeson  v.  Sutlitt 
Acker  v.  Ledyard 
Ackley  v.  Kellogg 
v.Bevkej 
Adair  v.  Adair 
Adam  v.  Robeson 
Adams  v.  Abernatby 
-y.  Andrews 
■V.  Blodgett 
V.  C  apron 
V.  Farnsworth 
11.  George 
V.  Horsfield 
V.  Midland 
v.  Neeley 
V.  Newfone 
V.  Woods 
Addington  v.  Etberidge 
Addis  V.  Fahnestock 
Aden  v.  Young 
Adkins  v.  Williams 
Agee  V.  Medlock 
Aiken  B.Bemis    2<6,  4W 

V.  Brnen 
Airington  v.  Coleman 
Albright  v.  Mallory 
Alcott  V.  Boston 
Aldigc  V.  Knox 
Aldricb  v.  Bonett 
V.  Palmer 
Alexander  v.  Abbott 


16.-) 

343 

6G 


Alexander  v.  Baylor 
1).  Byron 
v.  Dunn 


7G3 
512 
629 
381 
36 
670 
429,  490 
4.-)4 
200 
480 
330 
17,  78 
412 
434 
430 
4.50 
676 
.568 
67 
694 
716 
351 
707 
417 
234 
136 
511,  563 
1,128 
543 
635 
219,  248 
431 
9 
4.50,  567 


V.  Jameson 
V.  Le^Yi3 
V.  Tbomas 
Alfred  v.  Saco 
-y.  State 
Alo-er  v.  Dvmcan 
°      V.  Hiler 
V.  IMerritt 
Allaire  v.  Hartsborne 
Allard  «.  Smith 
Allen  V.  Aldrich 


PAGE 

605 
309 
84,  166,  221, 
237 
218 
551,  543 
581 
649 
179 
462 
672 
502,  546 
33 
161 
134,  285,  374 


175, 


«.Aiaricu      ..,    ro'ooi  424, 
V.  Blunt  49,  o3,  ob,  .i-i,  ^g|^ 


V.  Brown 
V.  Flock 
V.  Folger 
t\  Freeland 
v.  Garesche 
V.  Hopper 

1).  Hostetter 

«.  Lyles 

V.  McNew 

V.  Mapes 

V.  Mayor 

V.  Rostain 

V.  Sawyer 

V.  Tyler 

-y.  Wanamaker 

V.  Way 

V.  Wood 

y.  Wordheimer 

Alley  V.  Bootli 

^j.  Hampton 

Ailing  V.  Slielton 
Allington  i'.  Tucker 
Allison  I'.  Barrett 
0.  Dartou 


570 

127 

142 

612 

458 

393 

710 

366 
61 
70 
638 
51 
63 
634 
261 
55 
8 
457 
314 
447 
661 
37,  538 
390 
144 


x;civ 


TABLE   OF   CASES    CITED. 


Allison  V.  Hedges 
V.  People 

AUman  v.  Garm 

Alston  V.  Grantham 

Althofi'.  Wolf 

American  v.  Bradford 
V.  Dobbin 
V.  luloes 
V.  Parsons 

Ames  V.  Potter 
V.  Sloat 

Amherst  v.  lladley 

Amidown  v.  Osgood 

Ammidown  v.  Wbeelock 

Amnions  v.  State 

Amyx  V.  Smith 

Anderson  v.  Bath 

V.  Busteed 
V.  Chandler 
.    V.  Duffield 
V.  George 
V.  State 
V.  Walker 
V.  Wilburu 

Andre  v.  Bodman 
V.  Johnson 

Andrews  v.  Cressy 

V.  South-vvick 
V.  Tinsley 

Angell  V.  Street 

Angus  V.  Dickerson 

Anthony  v.  State 

Antoine  v.  Ridge 

Appleby  v.  Firemen's 

Appleton  V.  Turnentine 

Apps  V.  Day 

Archdale  v.  Moore 

Archer  v.  Ilubbell 

Archibald  v.  Davis 

Ardery  v.  Pollys 

Arcy  V.  Stephenson 

Armis  v.  Barker 

Armistead  v.  Brooke 

Armstrong  v.  Hickman 
V.  Picrson 
V.  Timmons 

Arnold  v.  Skaggs 

V.  TourU'llot 
V.  Williams 

Arrington  v.  Cherry 

V.  Washington 

Arthur  v.  Mitchell 

Arthurs  v.  Hart 

Artisans'  v.  Treadwell 

Ash  V.  Ash  5, 

Ashburnham  v.  Michael 

Ashcroft  V.  Pouus 


I 

»AGE 

PAGE 

722 

Ashley  v.  Ashley 

489 

,  490 

243 

,  243 

V.  Root 

35 

291 

Ashuelot  V.  Pearson 

732 

29 

381 

Aslop  V.  ]\ragill 

40 

285 

Aspley  V.  Thomas 

445 

130 

Astley  V.  Welden 

571 

311 

Atchison  v.  Steamboat 

403 

318 

Atherton  v.  Tilton 

305 

295 

Atkins  t\  State 

196 

,233 

46 

105 

V.  Wyman 

4,7 

140 

Atkinson  v.  Gatcher 

304 

331 

51 

103 

V.  Lane 

038 

G51 

V.  Nevrton 

375 

21 

Atlantic  v.  Wright 

134 

450 

Attei'burry  v.  Fairmanner 

541 

707 

Atwell  V.  Grant 

436 

378 

Aubel  V.  Ealer 

493 

417 

Augusta  V.  Abbott 

377 

638 

■».  Wellborn 

11 

541 

Aulanier  v.  Governor 

732 

67 

125 

Ault  v.  Fleming 

325 

162 

Aureutz  v.  Porter 

020 

650 

Austin  V.  Bingham 

281 

468 

V.  Nichols 

653 

438 

V.  Thomson 

434 

639 

Avcrett  v.  Brady 

256 

030 

Avery  v.  State 

496 

518 

296 

Aurora  v.  Col)b 

23 

400 

220 

Axtell  V.  Caldwell 

290 

22 

Aycock  V.  Williams 

676 

452 

Ayer  v.  Bartlctt 

571 

92 

Aylett  V.  JeM'cU 

248, 

250 

454 

,570 

Aylwin  v.  Ulmer 

278 

328 

Ayrault  v.  Chamberlain 

220 

404 

701 

Ayres  v.  Duprey 

391 

573 

46, 

447 
558 
572 
454 

B. 

250 

Babcock  v.  Callender 

310 

62 

V.  Porter 

404 

203, 

265 

V.  Sanborn 

062 

595 

Backster  v.  Hall 

445 

42 

Bacon  v.  Ward 

654 

189 

V.  Williams 

398 

483, 

517 

Bacot  V.  Keith 

574 

652 

Bagby  v.  Lewis 

453 

22 

Bagge  V.  Lynch 

499 

59 

Bagicy  V.  Smith 

381 

009 

Bagshaw  v.  Dorsett 

458 

548 

Bailey  v.  Baxter 

655 

645 

t\  Ellis 

468 

720 

V.  Trumbull 

87, 

191 

127, 

579 

Bakcman  v.  Rjse 

365 

171 

Baker  v.  Backus 

663 

10 

V.  Bouesteel 

445 

TABLE   OF    CASES   CITED. 


XXV 


PAGE 

p 

AGE 

Baker  v.  Briggs 

478 

Barnes  v.  Dodge 

016 

V.  Cook 

469 

V.  Moody 

671 

V.  Ezzurd 

254 

V.  Strohccker 

152 

V.  Pritchctt 

449 

Barnett  v.  Thompson 

389 

i\  Richardson 

482 

Barnette  v.  Hicks 

563 

V.  Siinmons 

212 

Barney  v.  Scherling 

104 

V.  Wright 

30 

Baron  v.  People 

631 

Bahnforth  v.  Pledge 

14 

Barreda  v.  Silsbee 

325 

Balcom  v.  Woodruff 

103 

Barrett  v.  Belshee 

505, 

518 

Baldwin  v.  Peet 

50 

V.  Maiden 

275 

Bales  V.  State 

503 

V.  Wills 

140 

Ball  V.  Bradley 

341 

Barrick  v.  Austin 

52 

Ball's 

114 

Barringer  v.  Nesbit 

54, 

475 

Ballauce  v.  Loomis 

614 

Barron  v.  Fay 

301 

Ballard  v.  Noaks 

24 

V.  Jackson 

18, 

544 

Ballenger  i\  Barnes 

718 

Barrow  v.  Jones 

551 

Baltimore  v.  Polly       238, 

377,  431 

V.  Paxton 

349 

«.  Resley       98, 

320,  324 

D.  Robichaux 

605 

383 

Barry  v.  Bennett 

412 

«.  Skeels 

296 

Barstow  v.  Sprague 

128 

V.  State 

358 

Bartholomew  v.  Edwards 

418 

V.  Williams 

350,  378 

V.  Merchants' 

295 

Bander  v.  Covill 

531 

Bartlett  v.  Glendy 

595 

Banfield  v.  Bruton 

453 

V.  Hoyt 

313 

Bangor  v.  Brunswick 

466 

V.  Hunt 

135 

V.  County 

705 

V.  Kingan 

469 

V.  Armstrong 

634 

V.  Pickersgill 

509 

t\  Bank 

455 

Bartol  v.  Calvert 

636 

Bank  v.  Bates 

636 

Barton  v.  Holmes 

162 

V.  Batty 

136 

V.  Kane 

434 

V.  Bobo 

480 

9).  Morphis 

401 

V.  Bowie 

140 

V.  AVells 

641 

V.  Hall 

637 

Bass  V.  Winfry 

648 

V.  Hiles 

81 

Bassett  v.  Porter 

275 

V.  Kerby 

662 

V.  Salisbury 

374 

V.  King 

459 

Bast  V.  Alford 

384 

V.  Patterson 

601 

Basye  v.  Beard 

597 

604 

V.  Plannett 

282 

Batchelor  v.  Creditors 

706 

V.  Stuart 

430 

Bateman  v.  Willoe 

524 

588 

Banks  v.  Hart 

188 

Bates  V.  Barber 

412 

Banning  v.  Banning 

637 

V.  Republic 

104 

Bantley  v.  Dillard 

591 

Batten  v.  Harrison 

531 

Baptist  V.  Peck 

622 

Battersby  v.  Abbott 

274 

Barada  v.  Carondelet 

613 

Battles  V.  Braintree 

134 

Barber  v.  Graves 

674 

Baxter  v.  Abbott 

24 

407 

Barbour  v.  Archer 

208 

V.  People 

202 

V.  AVhite 

294 

Baylis  v.  Lucas 

108 

Barker  v.  Brink 

143 

Beagles  i\  Sefton 

46 

V.  Brown 

13 

Beal  V.  Stone 

23 

455 

V.  Callihan 

663 

Beale  v.  Digges 

616 

V.  French 

504 

V.  Hall                 158, 

159 

398 

V.  Hobbs 

707 

Beall  V.  Brown 

607 

V.  State 

397 

V.  Campbell 

165 

Barksdale  v.  Brown 

289,  Oil 

V.  ISIann 

62 

289 

V.  Bunkley 

608 

V.  Pearre 

304 

Barlow  v.  Lambert 

421 

Bealle  -y.  Day 

629 

Barnard  v.  Young 

143 

Bean  v.  Blanton 

616 

XXVI 


TABLE   OF   CASES   CITED. 


Beans  v.  Emannelli 
Bear  V.  Boles 
Beard  v.  Simmons 
Beardmorc  i\  Carrington 
Bcates  v.  Helallick 
Beatty  v.  Lycoming 
Beaufort  v.  Crawshay 
Beavers 

Bcazley  v.  Sliaplcigh 
Becklej'  i'.  Palmer 
Bedell  v.  Commercial 

V.  Powell 
Bedford  v.  The  State 
Bediugton  v.  Southall 
Beehe  v.  Stntsmau 
Beecher  v.  Derby 
Beek  o.  Cole 
Beekman  v.  Bemas 
Beers  v.  Broome 
V.  Koot 
V.  AVoodruff 
Begg  V.  "Whiltier 
Belcher  v.  lirithe 

v.  Grey 
Beldeu  v.  Gray 
Belk  V.  Massey 
Belknap  v.  Wendell 
Bell  V.  Chambers 
V.  Cunningham 
V.  Keefe 
V.  Morrison 
V.  Rinker 
1).  Shibley 
V.  State 
V.  Thompson 
V.  Williams 
Bellamy  v.  AVoodson 
Bcllish  0.  Arnold 
Bemis  v.  Faxon 
V.  Phelps 
Bemus  v.  Clark 
Bender  v.  Sherwood 
Benedict  v.  Hoggin 
V.  Lawson 
V.  State 
Benett  v.  Peninsular 
Benham  v.  Home 
Benner  v.  Welt 
Bennet  v.  Bullock 
Bennett's 
Bennett  v.  Alcock 
V.  Baker 
V.  Ilardaway 
V.  Howard 
V.  Runyon 
V.  The"State 
Benoist  v.  Powell 


PAGE 

PAGK 

23 

Benson  v.  Fish 

216 

22 

Benson  t.  Frederick 

578 

5or) 

Berger  v.  Spalding 

102 

r,79 

Bergen  v.  Riggs 

295 

150 

Berks  v.  Jones 

143 

320 

V.  ]\Iason 

488 

440 

Berry  v.  Billings 

264 

350 

G7 

V.  Lowe 

637 

696 

535 

V.  i\Latzler 

102 

G14 

GIG 

V.  Singer 

77 

25 

Berryhill  v.  Jacobs 

107 

394 

V.  ^VFKce 

713 

111 

Berwick  v.  Ilorsfall 

311 

323 

212 

Bethea  v.  Prothro 

53 

323 

Bethune  v.  McCrary 

296 

472 

Bettison  v.  Jennings 

607 

48 

Bevan  v.  Byrd 

357 

554 

Beveridge  v.  Welch 

563 

17, 

416 

Bickley  v.  Biddle 

291 

512 

Bigby  V.  Powell 

38 

470 

Bigelow  V.  Ward 

89 

428 

V.  Young 

440 

287 

Biggs  V.  Berry 

157 

4G9 

Bignall  v.  Devnish 

407 

311 

Billingsley  v.  Groves 

566 

4GG 

Billups  V.  Sears 

604 

384 

Binder  v.  The  State 

219 

426 

Bingley  v.  MoUison 

533 

605 

Binion  v.  Miller 

335 

436 

Birch  V.  Benton 

311 

578 

Birchard  v.  Booth       161, 

162, 

169, 

4G0 

563 

442 

Bird  V.  Bird 

620 

711 

V.  The  Slate 

46 

540 

Birdsell  v.  Russell 

336 

601 

Bird  well  v.  Cox 

534 

597 

607 

Birkby  v.  Birkby 

669 

248 

Bishop  V.  Fahay 

41 

717 

V.  Hampton 

634 

324 

V.  iMayor 

574 

628 

V.  The  State      88, 

175, 

243, 

79 

404 

o  (8 

Bissel  V.  Beckwith 

434 

469 

/'.  Bozman 

614 

640 

IK  Ilojikins 

349 

111 

V.  Spencer 

660 

305 

Bivens  v.  The  State 

453 

GG3, 

671 

Bixby  V.  The  State 

504 

518 

638 

Black  V.  Black 

634 

511 

V.  Foster 

436 

5G7 

586 

V.  Jones 

263 

160 

V.  Kirgan 

664 

455 

V.  Wurtz 

343 

206 

Blackburn  v.  Beall       295 

387 

428 

81 

V.  Parkinson 

405 

314 

457 

V.  Thornton 

371 

24 

Blackhurst  v.  Bulwer 

536 

TABLE   OF   CASES   CITED. 


PAGE 

149,  242 
242 


Blacklcy  v.  Sheldon 
Bladen  v.  Cockey 
Blain  ».  Stewart 
Blair  v.  Corby 

V.  Hamilton 
Blake  v.  Blossom 
t).  Davis 
V.  Home 
V.  Sawin 
Blakeney  v.  Ferguson 
Blalock  V.  Phillips 
Blanc  V.  Klumpke 
Blanchard  «.  Jacobs 
v.  Morris 
V.  Pratt 
V.  Wild 
Bland  v.  The  State 
Blanding  v.  Sargent 
Blanks  i\  Foushee 
Bledsoe  v.  Doe 
Bliss  y.  Shnman 
Bliven  ®.  New  England 
Blodgett  V.  Pvoyalton 
Blood  V.  Whitman 
Blount  B.Tomliu 
Blum  V.  Higgins 
Board  t'.  Ray 

Boardman  v.  Insurance  Co. 
Bobbs  v.  Lambdm 
Bodman  v.  Harris 
Bodwell  V.  Osgood 
Boetge  V.  Landa 
Bogan  v.  White 
Boi-le's  V.  Kreitzer 
Bohr  y.  Steamboat 
Boies  «.  Henncy 
Bolan  V.  Peeples 
Boland  v.  Greenville 
Bolton  V.  McKinley 

V.  Stewart 
Bond  i\  Baldwin 
i\  Brown 
«.  Cutler 
V.  Hall 
V.  Mallow 
V.  The  State 
Bonds  V.  Gray 
Bone  V.  Ingram 
Bonham  r.  lo^'^ 
Bonner  v.  Baxter 
Bonney  v.  Morrill 
Boobv  T.  The  State 
Boom  «.  De  Bois 
Boon  V.  Boon 

V.  The  State 
Booth  V.  The  Commonwealth 


Booth  V.  Kesler 
■y.  Small 
Borland  v.  Thornton 
Borrowscale  «.  Bosworth 
I  Borsch  ».  The  State 
Borst  V.  Beecher 
1  Bosley  v.  Bruner 

-p.  Chesapeake 
Boston  V.  Dana 
Bostwick  V.  Williams 
Boudreau  v.  Boudrcau 
'  Boughton  V.  Bank 
;  Boullemet  v.  State 
1  Bourke  v.  Bulow 
I  -y.  James 

,  1  Bourland  v.  Skinner 
Bovard  «.  Christy 
Bovill  y.  Pimm 
Bowditch  «.  Bufrum 
Bow  en  v.  Angell 
ij.  Cook 
■y.  Lanier 
13.  Malbon 
Bower  ».  Earle 
Bowers  «.  Still 
Bowie  V.  Brahe 
D.  State 
Bowie  V.  Rouse 
?j.  State 
Bowler  v.  Palmer 
Bowyer  v.  Crugh 
Boxley  v.  Collins _ 
Boyce  v.  California 
V.  Smith 
V.  Yoden 
Boyd  V.  Brown 
«.  Lombard 
V.  The  State 
Boyle  y.  Colman 
Boydeu  ■y.  Moore 
Boyington  «.  State 
Boyle  y.  Wiseman 
Bradford  v.  Bayles 

i).  Pearson 
Bradish  «.  Redway 

-y.  State 
Bradlaugh  «.  Edwards 
Bradley  y.  Bears 

v.  Bradley 
V.  Geiselman 
y.  Poole 
V.  Richardson 
< ,  .  Brady  «.  Dilley 
^49  ti.  Hancock 

Igg  i).  Malone 

gg  t).  O'Brien 


24? 


xxvu 

PAGE 
G04 
447 
597 
23 
217 
167 
669 
42 
245 
6G6 
444 
616 
265 
576 
311 
491,  515 
300 
328 
52 
82 
459 
623 
163 
307 
428 
340 
20,  43,  257 
666 
20,  43 
721 
612 
143 
161 
79 
547 
470.  574 
661 
85, 


379 

407 

56,  254 

167 

323 

636 

47 

709 

518 

573 

634 

213,  252 

462 


50 


353, 


392 
591 
718 
607 
646 
31 


XXVI 11 


TABLE   OF   CASES    CITED. 


Brairg  v.  Boston 
Brainanl  v.  ^fartin 
Brakcfield  v.  State 
Braloy  v.  Clarke 
Branch  v.  Bass 
V.  Dover 
V.  AVilson 
Brandin  v.  Graiinis 
Brandon  v.  Green 
Branford  v.  Freeman 
Branger  v.  Chevalier 
Brannin  v.  Force 
Brant  v.  Fowler 
Bratton  v.  Bryan 

V.  Mitchell 
Brazelton  v.  Jenkins 
Brazier  v.  Burt 

•v.  Clai)p 
Breach  r.  Casterton 
Breck  v.  Blanehard 
Breckenridn-e  v.  Ander 
Breeding  v.  State 
Brents  v.  Barrett 
Brewer  v.  Brewer 
V.  State 
V.  Turner 
Brewin  v.  Farncll 
Bridendolph  v.  Zellars 
Bridge  v.  Williams 
Briggs  V.  Byrd 

V.  Georgia 
V.  Gleason 
v.  Humphrey 
V.  Smitli 
■».  Tavlor 
Bright  V.  Eynon 
Brisbane  v.  Adams 
Brister  v.  State 
Bristol  V.  Chicago 
Bristow's 
Brittain  v.  Allen 
Britton  v.  South 
Broach  v.  King 
Broadhead  v.  Marshall 
Broas  v.  ^Mersereau 
Brock  V.  Garrett 

«.  King 
Brockman  v.  Bcrryhill 
Bronson  v.  Green 

V.  Wiman 
Brook  V.  Middleton 

V.  Wood 
Brooke  v.  Grand 
Brooks  V.  Bicknell 
V.  Clifton 
V.  Goodwin 
V.  PeiTy 


son 


G3 

503 
15G,  198 

G58 
175,  103 


Brooks  V.  Williams 
Brotherson  v.  Jones 
B  rower  v.  Orser 
Brown  v.  Bowen 

V.  Bradshaw 
V.  Bristol 
V.  Brooks 
V.  Bull 
V.  Chase 
V.  Cockerell 
V.  Connelly 
V.  Crim 
V.  Cummings 
V.  Davenport 
V.  Ferguson 
V.  Gray 
?).  llandley 
V.  Hoburger 
V.  Horless 
V.  Huger 
V.  Jefferson 
V.  Keach 
v.  Levins 
V.  ]\ray 
V.  McConnel 
V.  ]\rcKee 
V.  ]\[oran 
V.  Jlorris 
1).  Bamsay 
V.  IJichardson 
V.  Rol)iusou 
■y.  Scott 
V.  Smith 
V.  Stacy 

V.  State  138 

V.  Tanner 
V.  Wheeler 
V.  Williams 
Browne  v.  Browne 
V.  Skillman 
Brownell  v.  IMcEwen 
Brownfield  v.  Browntield 
Browning  v.  Mississippi 

V.  State  4G, 

Bruce  v.  Bawlins 
Brucker  v.  State 
Brugh  V.  Shanks  451 

Bruish  v.  Carter  ' 

Brumbaugli  v.  Schencbly 
Brummel  v.  Enders 
Brunson  v.  Gorham 
Brush  V.  Keeler 

v.  Kohn 
Bryan  v.  Acee 

V.  Knight 
V.  Primm 
V.  Walton 


PAGE 
610 

336 
312 

45 
66 
06,  129 
358 
625 
634 
296 
309 
81 
408 
6GS 
129 
24,  29 
445 
413 
147 
320 
450 
63 
663 
413 
233 
659 
433 
72 
691 
420 
47,  433 
713 
480 
499 
243,  296 
5G6 
193 
51 
138,  157 
137 
243 
229,  295 
232 
172,  473 
584 
240 
458,  505 
284 
604 
131 
218 
41 
153 
563 
616 
593 
895 


TABLE   OF   CASES    CITED. 


XXIX 


Bryant  x.  Commonwealth 

V.  Crosby 
Bryescliill  v.  McCauley 
Buclian  v.  Sumner 
Buchanan  v.  Carolin 

V.  McKenzie 

V.  State 

V.  Torrance 
Buckfield  v.  Gorham 
Buckhanan  v.  Gamble 
Bucklaud  s.  Charlemont 
Buckley  v.  Artcher 
Buckman  v.  Buckman 
Buckmaster  v.  Cool 
Bucknam  v.  Greenleaf 
Buckner  v.  Cowley 
Buddington  v.  Knowles 
V.  Shearer 
Budyman  v.  Viele 
Bufi'alo  V.  Kewton 
Buford  D.  Burdett 
Bulkeley  v.  Keteltas 
Bulkley  v.  Waterman 
Bull's 

Bull  V.  Griswold 
BuUard  v.  Brackett 

•y.  Green 
Bullock  V.  Beach 
Bulsou  V.  People 
Bump  y.  Betts 
Buuce  V.  Wightman 
Bunn  V.  Croul 
V.  Hoyt 
Bunton  v.  Lyford 
Burdiue  v.  Grand 
Burens  v.  State 
Burge  V.  Burns 
Burger  v.  Potter 
V.  White 
Burgess  v.  Lloyd 
V.  Tweed 
Burges  v.  Nightingale 
Burghardt  v.  Van  Deusen 
Burke  v.  Norwich 
Burkhalter  v.  Wells 
Burkholder  v.  Stahl 
Burleson  v.  Burleson 
Burliugame  v.  Burlingame 
Burlington  v.  Green      13,  455,  456 
Burnham  v.  Ayer  ^28 

V.  Butler  G45 

Burney  v.  Spear  334 

Burnley  v.  Rice  518 

Burnett  v.  Pacheco  32 

Burns  v.  Morse  595 

V.  Paine  233,  243 

Burnside  v.  Grand  88 


PAGE 

178 
382 
619 
601 
491  I 
122 
185! 
607] 
638 
146 
107 
350 
717 
98 
153 
75 
63,  484 
411 
647 
719 
671 
286 
462 
243 
415 

624,  C52 
716 
52,  63 
628 
584 
628 
223 

233,  242 
604 
193 
432 
613 
661 
719 
309 
645 
573 
217 
347 
449 
10 
128 
241 


39-; 


r 

AGE 

Burnside  v.  Union 

88 

Burr  V.  Palmer 

99, 

505 

V.  Williams 

302, 

311 

Burrell  v.  State             183, 

194, 

305 

Burrill  v.  Phillips 

236 

Burroughs  v.  Langley 

323 

Burrows  v.  Unwin 

222 

Burtin  v.  Thompson 

66 

Burtine  v.  State 

210 

Burtons.  Ilynson 

609, 

597 

Buscall  V.  liogg 

66 

Butler  V.  Dorant 

98 

V.  Livingston 

445 

V.  Slam 

271 

Button  V.  McCauley 

423 

Buttrick  v.  Gilman 

90 

Butts  V.  King 

445 

Bj'rd  V.  Johnson 

628 

i\  State 

1G3 

Byrnes  v.  Alexander 

445 

c. 

Cady  V.  Owen 
Gaboon  v.  Marshall 
Cain  V.  Cain 

V.  Henderson 
V.  Ingham 
Calcraft  v.  Gibbs 
Calderwood  v.  Brooks 

V.  Tevis 
Caldwell  v.  Dickson 
V.  AVest 
V.  Wright 
Caleb  V.  State 
Calhoun  v.  Stokes 
Callahan  v.  Caflfarata 
Callan  v.  May 
Callauan  v.  Shaw 
Calvert  v.  Carter 
Calwell  V.  Thompson 
Cambria  v.  Tomb 
Camden  v.  Cowley 

V.  Edie 
Cameron  v.  Ward 
Camp  V.  Heclan 

V.  Tompkins 
Campbell  v.  Beckett 
V.  Boyreau 
V.  Briggs 
V.  Genet 
V.  Howard 
V.  Johnson 
V.  Queen 
V.  Quinlin 
V.  Skidmore 


372 
343 
83 
488 
189 
254 
82 
108 
318,  515 
163 
8 
215 
445 
493 
709 
450 
718 
739 
343 
484 
648 
646 
307 
110 
374 
650 
608 
496 
730 
063 
134 
757 
344 


r35, 


XXX 


TABLE   OF   CASES   CITED. 


Campbell  v.  Pmitli 
r.  Silencer 
V.  Stale 
V.  Stron;^ 
V.  Thompson 
V.  Wilson 


PAGE 

064 
448 
371 
G21 
391 
40 


Cancemi  v.  People  86, 156,  160, 176 

Cannon  v.  Beemer  718 

V.  Bullock  189 

V.  State  233 

Cape,  &c.  594 

Capchart  v.  Carradine  585 

CaiMTtown  i\  Iluddleston  616 

Carder  v.  Baxter  23 

Cardin  v.  Jones  G03 

Carey  v.  Jirxzht  393 

V.  CalVan  40 

V.  Giles  662 

V.  King  537,  545 

V.  McDougald  107 

Carl  V.  Knott  346 

Carleton  v.  Goodwin's  754 

V.  Townsend  345 

Carlisle  v.  Slieldon  208 

T.  Tidwell  518 

Carlton  v.  Pierce  393 

Carlyon  v.  Lanuan  395 

Carol  V.  3Iayo  46 

Carpenter  v.  Dame  162 

T.  State  459 

Carpentier  v.  Small  41,  122 

V.  Thurston  75,  319 

Can-  V.  Gale    46,  99,  276,  461,  511, 

563 

V.  State  62,  519 

V.  Steyenson  133,  144 

v.  Stringer  713 

Carraway  v.  Board  755 

Carringtbn  v.  Ilolabird  588 

V.  Pacific  270 

Carroll  v.  Granite  420,  422 

V.  Paul  255 

V.  Koberts  287 

V.  Stafford  444 

Carrnth  v.  Tigke  745 

Carson  v.  Cross  497 

Carstairs  v.  Stein  490 

Carter  13 

Carter  v.  Beals  28 

V.  Bennett  7,  256,  597 

v.  Buchanan  269 

V.  Carter  8 

Cartright  v.  Clopton  227 

Carver  v.  Jackson  285 

Carwan  «.  NcAvhall  188 

Carwile  v.  Harvey  575 

Case  of  a  Jurvman  172 


PAGE 

Case  V.  State  99 

V.  Williams  273,  274 

Cason  V.  Slate  314 

Cassels  v.  State  445 

Cassidv  V.  Conway  342 

Castanos  v.  Ritter  300 

Castello  V.  St.  Louis  780 

Castle  V.  Ballard  256,  264,  268,  269 

Castree  v.  Gaville  725 

Castro  V.  Gill  311 

V.  lilies  293 

V.  Wurzback  500 

Catawissa  v.  Armstrong  359 

Gates  V.  West  648 

Catheart  v.  Com.  634,  636,  647,  648 

Catlin  V.  Henton  737 

Catterlin  v.  Spinks  738 

Causey  v.  Wiley  350 

Cavanaugh  v.  Titus  635 

Cayce  v.  Powell  604 

Cay  V.  Kendall  249 

Cecil  V.  Barrv  321 

V.  lieald  91 

Center  (\  Center  411,  414 

Central  v.  Hines  296 

V.  Placer  693 

V.  St.  John  406 

Chadbourn  v.  Franklin  203,  247, 

396 

Chaffee  v.  Malarkee  750 

V.  Soldan  628 

Chaffin  V.  Lawrence  296 

Chamberlain  v.  Masterson  372,  384, 

398 

Chambers  v.  Campbell  405 

V.  Canlfield  586 

V.  Collier  151 

V.  Dickson  82 

V.  Fisk  255 

V.  Hodges  668 

V.  Neal  764 

V.  People  147 

V.  Robinson  564,  583 

V.  Shaw  636 

Champion  v.  Brooks  21,  632 

V.  Miller  597 

V.  Plymouth  721 

Chandler  r.  Barker  161 

?;.  Fulton  57 

r.  :\Ierkling  452 

V.  Walker  726 

Chanellor  r.  Vaughn  578 

Chapin  v.  Potter  311,  324 

Chapman  r.  Gray  668 

V.  Wilkinson  13 

Chappell  r.  Allen  294 

Charles  v.  Dubose  658 


TABLE  OF  CASES  CITED. 


XXXI 


PAGE 

Charlotte  v.  Chouteau 

311 

Charlton  v.  Unis 

423 

Chase  v.  Alliance 

440 

V.  Brown 

133 

V.  Doming 

145 

V.  Jennings 

189 

V.  1?  a  1st  on 

344 

Chatficld  r.  I.athrop 

508 

Cheathaui  v.  l^iddlc 

369 

Cheek  v.  Taylor 

603 

Chem  11.  Brig 

586 

Cheney  v.  Palmer 

349 

Chenowith  v.  Hicks 

567 

Cherry  v.  Slade 

126 

Chesapeake  v.  Stark 

333 

V.  Swain 

323 

Cheswell  v.  Chapman 

136 

Chevaillier  r.  Brewer 

457 

i\  Densou 

454 

Cheveley  v.  Fuller 

276 

Chiapella  v.  Brown 

102 

Chicago  V.  Adams 

629 

v.  Dement 

473 

V.  Fell 

691 

693 

«.  George 

381 

V.  Northern 

451 

V.  Shannon 

376 

401 

V.  Utley 

305 

«.  Vosburgh 

450 

533 

V.  Whipple 

694 

^708 

V.  Williams 

451 

Chick  V.  Parker 

121 

Childress  v.  Ford 

268 

V.  Mayor 

721 

V.  Stone 

445 

Chiles  V.  Drake 

384 

,  580 

Chisvers  r.  Lambert 

562 

Chouquette  v.  Barada 

373 

Chouteau  v.  Pierre 

194 

V.  Rice 

713 

Christian  v.  Dripps 

89 

Christman  v.  Gregory 

320 

■V.  Melve 

38 

Chumasero  v.  Gilbert 

648 

Church  r.  Drummond 

350 

Chui'chill  i\  Churchill 

189 

V.  Corker 

47 

«.  Rogers 

404 

Cilley  V.  BartleTt 

203 

296 

Cincinnati  c.  Washburn 

3 

Cisna  v.  Beach 

660 

City  Bank  v.  McChesney 

133 

City  of  London 

633 

City  V.  Jackson 

638 

Claggett  V.  Claggett 

633 

V.  Simes 

671 

Claiborne  v.  Tanner 

147 

,  366 

I'.VGH 

Clair  V.  McGehee 

046 

Clapp  v.  Balch 

390 

V.  Clai)p 

645 

V.  Hudson 

564, 580 

Clark  V.  Bales 

563 

V.  Bank 

103 

V.  Bell 

030 

V.  Binncy 

583 

v.  Blount 

103 

V.  Bouvain 

88 

V.  Carter      90,  244, 

491,  494, 

500 

V.  Com. 

170 

V.  Davis 

453 

V.  First 

589 

V.  Gridley 

30,88 

V.  Hammerlc 

386 

V.  Howard 

739 

V.  Lamb 

634 

V.  Lowell 

007 

V.  McElvy 

366 

V.  McGraw 

394,  335 

V.  Pendleton 

47,  585 

».  Rankin 

360 

V.  Snow 

094 

V.  Sohier 

555 

V.  State 

130 

V.  Tabor 

398 

V.  Udall 

561,  564 

V.  Vorse 

411 

V.  Wilder 

39 

V.  Wood 

385 

Clarke  v.  Diggs 

377 

V.  Dutcher  57,  lOe 

, 393, 318 

Clark's  v.  Hannibal 

377 

Clary  v.  Hoagland 

694 

Claussen  v.  Salinas 

103 

Clayton  v.  Brown 

408 

Clemens  «.  Collins 

397 

Clement  «.  Brooks 

46 

v.  Hayden 

048 

Clemsen  v.  Ivruper 

405,  407 

Clerk  V.  IMoore 

766 

Cleveland  v.  Chamberlain 

747 

V.  Stanley 

156 

V.  Stein 

133 

V.  Terry 

136 

Clifford  V.  Thomaston 

330 

Clifton  v.  Livor 

589 

V.  Sheldon 

747 

Cliquot's 

346 

Clone's 

194 

C lough  V.  Brown 

706 

V.  Clough 

151 

V.  Patrick 

371 

Clute  V.  Ewing 

603 

Coates  V.  Gregory 

397 

xxxn 


TABLE    OF   CASES   CITED. 


PAGE 


Coats  V.  Elliott 

362 

Cobb  V.  Norwood 

82 

V.  "Wallace 

327 

Coclicco  V.  Berry 

318 

Coclirau  v.  Amnion 

509 

V.  State 

480 

V.  Street 

249 

Cochrane  v.  Boston 

151 

V.  ]Midcllcton 

100 

■V.  "Winljurn 

43, 

569 

Cocker  v.  Franklin 

331, 

334 

Cockrill  V.  Calhoun 

540 

Cocks  i\  llart 

432 

Codington  v.  Camley 

459 

Codwell's 

171 

Cody  V.  State 

176 

Coe  V.  Turner 

662 

Coffee  V.  Newson 

644 

Coffin  V.  Coffin 

578 

Cogan  V.  Ebdcn 

250 

V.  Frisby 

46 

Cogdell  V.  Barfleld 

106 

Coggin  i\  Jones 

457 

Coghill  V.  Marks 

546 

Cohen  v.  Robert 

203 

Coil  V.  "Wallace 

89 

Coit  V.  "Waples 

029 

Coker  v.  State 

523 

Cole  V.  Cheshire 

430 

V.  Perry 

581 

V.  State 

120 

V.  Taylor 

256 

Coleman  v.  Southwick 

581 

V.  State 

243 

CoUedge  v.  Hone 

337 

Collier  «.  State              179, 

209 

390 

Collins  V.  Brush 

349 

V.  Claypole 

405 

«.  Collins 

744 

V.  Graves 

147 

V.  Loyd 

502 

V.  Makepeace 

137 

V.  Morcy 

475 

V.  U.  S.,  &c. 

754 

Collinson  v.  Larkins 

484 

,489 

Colman  v.  Clements 

321 

Colquitt  V.  Thomas 

378 

Colt  V.  CornwcU 

614 

Colvin  V.  AVarlord        299, 

388 

,434 

Colyer  v.  Thompson 

659 

Combs  V.  Jelierson 

747 

Comfort  V.  Thompson 

482 

Couun'l  V.  Lum 

82 

V.  Shuart 

430 

Com'rs  V.  Carey 

077 

V.  Clarke 

260 

Common-wealth  v.  Anthes 

311 

,312 

Commonwealth  v.  Arrancc 
V.  Austin 


TAGE 

395 
195 

V.  Barney  311 

1).  Barry  309 

V.  Bcuech  519,  552 

V.  Bergcr  705 

V.  Blood  740 

V.  Bosworth       411 

V.  Briggs 

V.  Burchcr 

V.  Burke 

V.  Buzzell 

v.  Capp 

V.  Carter 

V.  Castles 

V.  Cherry 

V.  Child 

V.  Church 

«.  Churchill 

V.  Clark 

V.  Concannon 

V.  Crawford 

V.  Cummings 

116,  683 

V.  Davis  324 

B.Domer  291,390, 
399 

V.  Drew 

V.  Dunham 


466 
102 
730 
194 
695 
102,  190 
48 
167 
286 
641 
512 
775 
395 
736 
115, 


V.  Eagan 
V.  Emmons 
V.  Fischblutt 
V.  Fitchburg 
V.  Flanagan 


249 
736, 
759 
192 
737 
128 
359 
175, 
179,  186 
».  Graddy  174 

v.  Green  114 

V.  Haas  620 

V.  Hall  400 

V.  Hayden  175 

V.  Howe  428 

V.  Huber  316 

V.  Jenkins  222 

V.  Lcsher  194 

v.  Manson     7,  511 
V.  Marra  155 

V.  Massinger      736 
V.  McCall         129, 
230,  232 
V.  Mead  242 

V.  Moore    107,  102 
V.  Murray  491 

V.  Nickerson      402 
V.  Norfolk  109 

■y.  O'Neil  737 

V.  Packard         276 


TABLE   OF   CASES   CITED. 


xxxili 


PAGE 

77 
Commomvcaim..Peck^  184 

,,:ilanaall  510,548 

V.  Eenish  fj 

1)  Richarcls        ^-j* 

lnohy     106,109, 

^'       ^       199,  203 

V.  Rock 

«.  Sandford 

V.  Shanks 

«.  Simpson 

V.  Skeggs 

V.  Smith 

-0,  Stowell 

V.  Tarr 

ij.  Thompson 

■J).  Thrasher 

B.  Tinldiam 
1)  Townsend 
V.  Van  Tuyl 

^j.  Webster 
«.  'Williams 

«.  Wormley 
Comparet  v.  Hedges 
Comply  «.  Biwne 
Comstock  ■«.  Grout 
V.  Savage 
V.  Ward 
Cougar  V.  Galena 
Conkey  v.  I^orthern 
Conklin  t.  Thompson 
Conhn  V.  San  Fraucisco 
Conn.  V.  Bliss 

D.  Tudor 
Conner  v.  Allen 
Conrad  ».  Lindley 
Conway  v.  Case 

11.  Ellison 
Conwell  V.  Anderson 
Cook  I'.  Adams 
V.  Brown 
V.  Carr 


594,  597 
510 
750 

377,  407 
194 


::Castner    155,243,245,246 

V.  De  La  Guerra  •'-'•* 

V.  Dickerson 

V.  Garza 

V.  Green 

V.  Hill 

V.  Jones 

V.  King 

V.  Ritter 

V.  Scott 

i\  State 

D.  Sypher 

3 


Cook  V.  United  States 

'0.  Wood 
Cooke  «.  Berry 
Cook's  D.  Carroll 
Cooper 

1).  Bisscll 
V.  Lloyd 
i).  Martin 
■y.  Miles 
v.  Poston 
V.  State 
«.  AValdron 
Copcutt «.  Great 
Copeland  v.  State 
Corbett  v.  Brown 
«.  Gilbert 
Corey  «•  Russell 
Corlies  «.  Little 
Cornelius  v.  Gibersou 
V.  Merntt 
V.  State 
Corning  v.  Corning 

«.  Troy 
Corry  ».  Tompkins 
Cortleyour.TenEyck 

Cory  «.  Silcox 
Cosgrave  v.  Howland 
Cosgrove  v.  Johnson 
Costly  v.  State 
Coston  V.  Coston 
Cothran  v.  State 
Cotten  V.  Rutledge 
Cotter  V.  State 
Cotton's 
Cotton  v.  State  _ 

y,  Watkms 
Coughlin  V.  People 
Couillard  V.  Duncan 
Countess 
Court «.  Sprague 
Covington  v.  Arrington 
Cowan  «.  Green 
V.  Price 
Cowden  i;.  Wade 
Cowles  V.  Buckman 
D.  Whitman 
Cowperthwaite  v.  Jones 
Cox  D.  Cox 

t,.  Freedley 
v.  Hamilton 
V.  Hutchings 
v.  Jackson 
V.  Mayor 
V.  Rutledge 
CoyleiJ.  Btv^'is 
Cozart  V.  Lisle 
Crabtree  v.  Cliatt 


PAGE 

121 
297 
496,  549 
318 
711 
652 
521 
709 
753 
135 
9 
355 


184, 


75 
480 
482 
147 
35 
445 
340 
642 
231 
754 
763 
385 
784 
228,  436 
31 
11 
185 
623 
295,  324 
227 
231 
173 
516,  536 
98 
263 
562 
173 
466 
623 
37 
610 
518 
160 
630 
161 
645 
320 
444 
499,  545 
434 
612 
422 
122 
514 
732 


21, 


XXXIV 


TABLE   OF   CASES   CITED. 


Crabtrce  v.  State 

Craft  r.  Jackson 
V.  Union 

Craijihcad  v.  Wells 

Crandall  v.  State 

Crane  v.  Lincoln 
V.  Sayre 

Crary  v.  Carradine 

Craspc  V.  Smith 

Cra\Yford  v.  Bashford 
V.  Creagli 
D.  Morris 
V.  New  Jersey 
V.  State 
V.  Tlmrmoud 

Crease  v.  Barrett 

Creed  v.  Fisher 
V.  White 

Cressinger  v.  Welch 

Cresswell  v.  Bledsoe 

Crim  V.  Scllars 

Crippon  v.  People 

Crofts  V.  Watcrhouse 

Crousillat  v.  Ball 

Crook  V.  Forsyth 

Cropper  v.  Pittman 

Cropsey  v.  Murphy 

Crouch  V.  McKee 

Croucher  v.  Oakman 

Crosby  v.  Blanchard 

Cross  V.  Hall 

V.  Wilkins 

Grossman  v.  llilltowu 

Crow  V.  Crow 
V.  French 
t\  State 

Crowther  v.  Rowlandson 

Crozier  v.  Cooi)cr 
V.  Kirker 

Crum  V.  Williams 

Crump  V.  Starke 

Crutcher  v.  Memphis 

CuUem  V.  Latimer 

Cullnm  v.  Wagstaff 

Culver  V.  Dwight 

Cumberland  v.  Tilghman 

Cuming  v.  Frier 

Cummings  v.  Heard 
V.  Henry 
V.  State 
V.  Tilton 
V.  AVhite 

Cummins  v.  Rice 

T.  Waldcn 

Cunningham  v.  Batchelder 

Curl  V.  Lowell  13^ 

Curric  v.  Cowles 


PAGE 

PAGE 

IGl 

Curry  v.  Ilinman 

759 

254 

Curtis  V.  Brown 

132 

492 

,  537 

V.  Francis 

341 

302 

V.  Rochester 

580 

GOO 

'V.  Root 

736 

59 

Curtiss  V.  Beard  sley 

735,  760 

154 

V.  Martin 

361 

151 

Cushing  v.  Billings 

403 

703 

V.  Willard 

283 

745 

Cutler  V.  Cohunbia 

498 

173 

V.  Welsh 

97 

75 

Cypress  v.  Hicks 

614 

fi29 

249 

607 

D. 

56 

567 

Dacy  V.  Gay 

569 

438 

D'Aquilar  v.  Tobin 

524 

200 

Dailey  v.  Grimes 

398 

005 

Dains  v.  State 

114 

11 

Daley  v.  Norwich 

490 

29 

178 

Dalton  V.  Bethlehem 

308 

356 

Dame  v.  Dame             408, 

551,  556 

142 

Dana  v.  Roberts 

206 

451 

Dance  v.  Tucker 

161,  248 

304 

Dane  v.  Stale 

397 

508 

Daniel  v.  Hannegan 

611 

103 

V.  Nelson 

411 

COO 

V.  Rose 

537 

83 

290 

v.  Traverse 

616 

52 

Dann  ».  Fish 

590 

151 

Dannelly  v.  Speak 

638 

324 

Danville  v.  Stewart 

580 

324 

Darby  v.  Ouseley 

310 

743 

Darden  v.  IMathews 

140 

711 

Darley  v.  Rol)bins 

77 

22 

Darling  v.  Dodge 

43 

491 

Darrance  v.  Preston 

82,  103 

296 

Dart  V.  Farmers' 

457 

284 

Dascomb  v.  BulTalo 

311 

89 

102 

Daveiss  v.  McKee 

603 

224 

421 

Davenport  v.  Cummings 

243,  244 

777 

V.  Field 

668 

322 

V.  Fletcher 

659 

408 

V.  Harris 

414 

381 

V.  Holland 

9 

80 

V.  Wright 

421 

712 

Davidson  v.  Stanley 

291 

344 

Davies  v.  Morgan 

558 

713 

V.  Roper 

477 

347 

Davis  V.  Campl)ell 

675 

14 

V.  Carter 

774 

402 

V.  Charles 

313 

521 

V.  Church 

391 

288 

V.  Cowdin 

735 

287, 

291 

V.  Davis 

581 

122 

V.  Furlow's 

337 

TABLE   OF   CASES   CITED. 


Davis  V.  Hale 

V.  Hern  don 
V.  Hoepp^ei" 
v.  Jeuney 


PAGE 

80,  458 
437 
450 
42,  287,  291, 
300,476 
214 
785 


V.  Lo-wman 
1).  Maxwell 
■y.  Millardon 
V.  Perley 
«.  People 
1).  Randall 
V.  Seneca 
v.  Strolun 
V.  Taylor 
V.  Tliomas 
I).  Tileston 
-y.  Wiuan 
Dawes  «.  Hudgens 
Dawley  v.  Hovious 
Dawson  v.  DeAvan 
Day  V.  Brawley 
v.  Cummings 
v.  Laflin 
1).  Moore 
V.  Washburn 
v.  Woodwortli 
Deacon  v.  Slireve 
Deakers  v.  Temple 
Dean  v.  Dean 
V.  Gridley 
V.  Hewitt 
V.  Young_ 
Deaner  v.  Erwin 
Dearmond  v.  Dearmoud 
De  Barry  v.  Lambert 
Deberry  «•  Holly 
Declierd  v.  Morrison 
Deeue  v.  McConnell  s 
Deer  v.  State 
Deerfleld  v.  Nortliwood 
Deery  v.  Cray  . 

De  Fonclear  ».  Sliottenkirk 
De  France  v.  De  France 
De  la  Figaniere  v.  Jackson 
Delaney  «•  Goddin 
Delap  V.  Hunter     _ 
Delaplaine  v.  Bergm 

V.  Madison 
Delaplane  v.  KrensliaW 
Delaware  v.  Barnes 
Delawter  v.  Sand 
Delmas  v.  Margo 
Deloacli  i\  AValker 
Delta  V.  Walker 
Den  V.  Gciger 

v.  Wintermute 
Denby  v.  Hart 


Denmead  v.  Coburn 
Denn  v.  Morrell 
Dennis  v.  Gummms 
V.  Dennis 
V.  ]\IcLaurin 
V.  Van  Voy 
Dennison  v.  Powers 


XXXV 

PAGE 
301 
515 

671 
745 
385 

418 
2-23 


614   Denny  t).  Moore 
337  V.  Williams 

201    Dent  v.  Hertford 

689,093  ^-.^^"'Spnln 

733   Depeyster  v.  Gom 

418    Depue  v.  Perry 

208    Deputy  V.  Betts 

^^^  '  Se^Rochebrune  v.  Sontlieimer 
De  Roufiguy  »•  Pcale 


618,  728 


600 

552, ^^^      ^ 

9   Deshler  v.  Beers 
455   Desverges  v.  Desverges 
324   Detroit  «.  Van  Stemburg 

146   Deyendorf  v.  Wert 
598   Deverert  v.  Loonier  _ 
655   Devereux  v.  Burgwiu 
395    Devin  v.  PatcUin 
748    Devine  v.  Martm 
404    Devling  v.  Little 
203  249    Dew  v.  Hamilton 
'384   Dewort  v.  Loonier 
21    Dexter  v.  Cole 
108  1  Dickenson  v.  McDermott 
Dickey  v.  Maine 
Dickerson  v.  Apperson 
V.  Board 
V.  Brady 
V.  Burke 
V.  Cook 
V.  Johnson 
Dickins  v.  Maliana 
Dickinson  v.  Burr 
V.  Cruise 
V.  Chism 
-y.  Lott 
11.  Van  Horn 
Dickson  v.  Mathers 
V.  Parker 
V.  Richardson 
Diedrichs  v.  Stomach 
Dilbv  V.  State 
Dilkin  v.  People 
Dill  V.  Jones 
Dillard  v.  IMoore 
'0.  Noel 
89   104  I  DilVm  v.  Murphy 
744  i'.  People     _ 

r»OG  I  Dillingham  i'.  Skein 
499,  501,  504  iDilly- Barnard 
750  I  Dilworth  v 


276,  288 
496 
606 
50,  188 
713 
695 
409 
492 
505 
410 
55 
473 
321 
703 
779 
635 
666 
621 
312 
409 
129 
545 


,  Com. 


479 
176 
224 
42 
637 
113 
425 
691 
553 
r7,  425 
427 
350 
42 
453 
747 
739 
529 
39 
611 
486 
489 
606 
24 
757 
599,  613 
446 
225 
595 
295,  450 
342 
415 
482 
607 
337 
32,  104 
496 
458 
591,608 
739 
113 
95 
662 
110 
137 
576 
42G 
165 
609 
175 


XXXVl 


TABLE   OF   CASES   CITED. 


PAGE 

Dimmick  v.  Milwaukee         46,  340 

Dingcc  V.  Jackson  305 

Din.i,nnan  v.  M)-ers  7G8 

Diomatari  v.  Clioate  457 

Displyn  v.  Sprat  171 

Ditmars  i'.  Com.  280 

Diversy  v.  Kellogg  307 

Dixon  V.  State  134 

Doane  v.  Baker  427 

V.  Duncan  298 

Dobbins  v.  Oswalt  225 

Dodge  V.  Brittan  453 

V.  Greelee  47 

V.  Rogers  260 

Dodson  V.  Connolly  82 

Doe  V.  Perkins  408 

V.  President  55 

V.  Price  500 

V.  Roberts  73 

V.  Roe  447,  494 

V.  Scribner  152 

V.  Strickland  5,  99 

V.  Tyler  58,  410 

V.  Watson  648 

Doggett  V.  Jordan  153 

Dole  V.  Erskine  180 

V.  Lyon  290 

V.  Tiuirlow  97 

Doll  V.  Anderson  121 

Dolloff  V.  Ilartwell  758 

V.  Stimpson  87 

Domick  v.  Reicbenbacli  "242 

Donaldson  v.  Kendall  608 

Donallcn  v.  Lennox  403,  534 

Donelson  v.  Taylor  89 

Donnell  v.  Parrott  591,  597 

V.  Shields  748 

V.  Vanney  149 

Donner  v.  Palmer  160,  247 

Donohue  v.  Henry  725 

Donston  v.  State  213 

Doolittle  V.  Shelton  651,  673 

Dorchester  v.  Wentworth  622 

Doremus  v.  Howard  738,  742 

Dorr  V.  Watson  521 

Dorsey  v.  Harris  388 

V.  i\Iarony  599 

Dossett  V.  .Alillcr  414,  499,  589 

Dougherty  v.  Vanderpool  411 

Douglas  V.  Chapin  570 

V.  McAlister  45 

V.  Tousey      232,  233,  242, 

490,  581 

Dousrlass  v.  State  235 

Douthit  V.  State  648 

Downer  v.  Baxter  233,  243 

Downing  v.  Bain  329 


PAGE 

Downing  v.  De  Klyn 

394 

Dows  V.  Congdon 

713,  718 

V.  Rush 

383 

Doyal  V.  Smith 

319 

Doyle  V.  Estornet 

393 

Drake  v.  Com. 

96 

V.  Foster 

438 

V.  Jones 

616 

V.  Palmer 

311 

V.  Sargent 

415,  446 

Drayton  v.  Thompson 

497 

Drennen  v.  Brown 

445,  449 

Dresser  v.  Ainsworth 

411 

V.  Brooks 

746 

Drew  V.  Towle 

318 

DriscoU  V.  Damp 

433 

Driskill  v.  State 

195 

Drodge  v.  Brand 

126 

Drowne  v.  Stimpson 

622 

Drumgoold  v.  Home 

173 

Drummond  v.  Leslie 

252 

Dryden  v.  Britton 

276 

Duckcr  «.  Vv^ood 

578 

Duckett  V.  Crider 

59 

V.  Towusend 

645 

Duffcll  V.  Noble 

385 

Duffey  V.  Congregation 

319 

Duffy  V.  People 

316 

Duffield  V.  Cross 

454 

V.  Delancey 

301 

Dufott  V.  Gorman 

720 

Dugau  V.  McDonald 

505 

Duggan  V.  Cole 

81 

Duke  V.  Craw  shay 

442 

Dula  V.  Cowles 

299 

Dunbar 

622 

V.  Bittle 

733 

Duncan  v.  Duboys 

424 

V.  Hargrove 

651 

V.  Lyon 

597 

V.  McNeill 

646 

Dunckle  v.  Cocker 

401 

Dunett  V.  Barksdale 

17 

Dunham  v.  Collier 

592 

V.  Downer 

590 

Dunklin  i\  District 

782 

Dunlap  V.  Atkinson 

646 

V.  Ilcarn 

302,  363 

V.  Robinson    202 

263,  296 

V.  Stetson 

605 

Dunlop  v.  Patterson 

364 

Dunn  V.  Bank 

616 

V.  Crozier 

107 

V.  Fisli 

607 

V.  Hall 

161,  243 

V.  Littlefield 

726 

V.  Moody 

365 

TABLE   OF    CASES   CITED. 


XXXVll 


PAGE 

Dunn  V.  People  371 

Duperley  v.  Gunning  502,  508 

Duprec  v.  Perry  601 

V.  Price  487 

Durand  v.  Grimes  257 

Durant  v.  Ashmore  509 

V.  Banta  337 

V.  Burt  285 

V.  Palmer  648 

Durfee  v.  Eveland  221 

Durham  ».  Baxter  554 

Dnrrance  v.  Brodders  449 

Duryee  v.  Dennison  500 

Duval  V.  ]\Ialone  143 

Dwelle  V.  Roatli  809 

Dwolf  V.  Haydn  741 

Dwyer  v.  Dunbar  201 

Dyche  v.  Patton  508,  590 

Dj'ckman  v.  Kernochan  593 

Dyer  v.  Armstrong  614 

V.  Green  139 

V.  Hatch  33 

Dyson  v.  State  165 


Eakin  v.  Morris 

204 

Eakman  v.  Shcaffer 

187 

Eames  v.  Blackhart 

303 

V.  Smith 

379 

Earl  V.  Dowling 

551 

V.  Leland 

751 

V.  Sadler 

575 

Earle  v.  Reid 

473 

V.  Thomas 

254 

«.  Van  Buren 

165 

Earll  V.  Mitchell 

481 

Early  v.  Garland 

291 

v.  Preston 

357 

East  V.  Hackney 

80 

Easterby  v.  Larco 

111 

Easterling  v.  Power 

6 

V.  State 

803 

Easterly  v.  Cole 

451, 

457 

Eastman  v.  Amoskeag 

44, 

037 

V.  Waterman 

768 

V.  Wight 

87 

479 

Easton  v.  Collier 

599 

V.  ('aldwell 

709 

V.  Jacobs 

473 

V.  Varnum       430, 

078 

714 

Eckert  v.  Cameron 

46 

V.  Flowry 

303 

Eddy  V.  Gray 

280 

Edeiine  v.  Saunders 

295 

383 

Edelman  v.  Yeakcl 

320 

PAGE 

Edgar  v.  Clevenger  016 

Edgerton  v.  Com.  631 

Edie  V.  E.  I.  Co.  547 

Edmeston  v.  Garrison  450, 497,  504 

Edmondson  v.  Machcll  14,  44 

Edmonson  v.  Bloomshire  754 

Edney  v.  King  Oil 

Edrington  v.  Skeger  460,  515 

Edwards  v.  Edwards  74,  648 

V.  Evans  412,  416 

V.  Lewis  38,  58 

V.  Osgood  766 

V.  Potter  35 

V.  State  226 

Eggleston  v.  Buck  662 

V.  Colis  729 

V.  Smiley  189 

E.  I.  Co.  V.  Paul  408 

Elder  v.  Dwight  729 

Eldred  ».  Haslet t  640 

Elkius  V.  Athearn  778 

Elkinton  d.  Fennimore  651 

Elledge  v.  Todd  160 

Ellington  v.  Leak  58 

ElUott  V.  Elmore  616 

V.  Eustace  718 

V.  Lyman  399 

V.  Whitmore  443 

EUis  V.  Gosney  591 

V.  Jameson  60 

V.  Kelly  540 

■y.  Mathews  294 

V.  Short  411 

'■0.  Smith  46 

V.  Thompson  331 

Ellsey  V.  Stone  358 

Elsey  V.  ]Metcalf  57 

Elston  V.  Blanchard  611 

Elwell  V.  Dizer  76 

Ely  V.  Ball  107 

V.  Frisbie  716 

V.  Horace  65 

D.  Tesch  365 

Emanuel  v.  Cocke  59 

Emerson  v.  Paine  389 

Emery  v.  Estes  239,  373 

V.  Phillips  49 

V.  Vinall  97 

Emmerson  v.  Harriet  634 

V.  Scott  634 

Emmons  v.  Bisliop  79 

V.  Lord  50 

V.  McKesson  756 

Emrick  v.  Armstrong  706 

England  v.  Burt  453,  454 

V.  Wickware  668 

English  V.  Clerry  574 


XXXVIU 


TABLE   OF   CASES   CITED. 


English  V.  Dernrro 
V.  Savage 
Eno  V.  Frisbie 
Enos  V.  Dayharsh 

V.  Sutherland 
Epps  V.  State  75, 

Erben  p.  Lorillard 
Erie  i\  Brawlc}' 
Erisman  v.  Walters 
Ernst  !).  Hudson 
Ernull  V.  Whit  ford 
Erskiue  v.  Wilson 
Erwin  v.  Bulla 

V.  Voorhees 
Erwing  v.  Ingraham 
Eskridge  v.  State 
Estop  V.  Larsh 
Estes  V.  Boothe 
Estham  v.  Curd 
Eufaula  v.  Plant 
Evans  v.  Adams 
V.  Spitman 
V.  St.  John 
Eveleth  V.  llannon 
Everett  v.  Clements 
V.  Neff 
V.  Whitfield 
■».  Youells 
Evertson  v.  Sawyer 
Ewing  V.  Gledwell 
1).  Gray 
V.  Kinnard 
V.  Thompson 
Ej^ler  V.  Hoover 
Eyser  v.  Weissgerber 


PAGE 

6-)! 
597 
Co3 
169 
718 
166,  209,  403 
409,  449 
054 
330 
359 
311 
336 
207 
339 
338 
645 

24 

313 

354 

588 

820,  034 

60 
392 
476 

36 

26 

297 

199 

576 

438 

6 

713 

68a,  690 

707 

200, 204,  320 


Fabcr  v.  Baldrick  458,  491 

Fabrigas  v.  3Iostyn  579 

Fabrilius  v.  Cock  508 

Facey  v.  Hurdom  333 

Fagan  v.  Winson  42 

Fagin  v.  ConoUy  311 

Fahncstock  v.  State  181,  194 

Fain  v.  Carnett  265 

V.  Jones  445 

Fairbanks  v.  Woodhouse  309,  311 

Fairchild  v.  California  305,  401 

V.  Case  412,  417 

Fairthorne  v.  Wigginton  634 

Fairley  v.  Berkey  352 

Falk  V.  Flotciicr  340 

Fallcnstin  v.  Boothe  583 

Fanfield  v.  Burt  630 

Fanning  v.  McCranney  58 


PA6K 

Farley  v.  Budd  123 

Farquhar  r.  Dallas  380 

V.  McFarland  673 

Farmer  v.  Darling  583 

Farmers'  v.  Griffith  720 

Farr  v.  Fuller  25,  83 

V.  Johnson  752 

Farrant  v.  Olmins  446 

Farrar  v.  Ohio  196 

FarrcU  v.  McKee  391 

Fausett  v.  Voss  29 

Fawcett  v.  Woods  575 

Fay  V.  Bond  104 

V.  Grim  stead  304 

Feagan  v.  Cureton  254 

Fearing  v.  De  Wolf  463 

Fee  V.  Bigg  431 

Fehl  V.  Good  489 

Felder  v.  Bonnett  20 

Felton  V.  Weyman  735 

Ferguson  v.  Clifford  311 

V.  Ferguson  319 

V.  Fox  265,  331 

V.  Gilbert  523 

Fermor  v.  Dorrington  170 

Ferrant  v.  Olmins  571 

Ferrar  v.  Ohio  219,  251 

Ferrell  v.  Adder  80 

V.  McKinney  449 

Ferriday  v.  Selser  190 

Ferris  v.  Barlow  513 

V.  Douglas  655 

V.  IMunn  786 

V.  People's  168 

Ferry  v.  Parks  436 

Fidler  v.  McKinley  585 

Field  V.  Avery  46 

V.  Boynton  448 

V.  Campbell  5 

V.  Dealsly  263 

V.  First  630 

V.  Matson  106 

V.  Reid  36] 

V.  Tenney  393 

Fikes  V.  Bcntley  499 

Final  v.  Backus  652 

Finday  v.  Parker  45 

Findlay  v.  Pruett  641 

Findly  v.  Bay  363 

Fine  v.  Rogers  254 

v.  St."  Louis  294,  321 

Finlay  v.  Stewart  395 

Finley  v.  Hanbest  311 

V.  Hayden  163 

Fish  V.  Roscberry  569 

V.  Scutt  468 

V.  Smith  333 


TABLE   OF   CASES   CITED. 


xxxix 


Fish  V.  Van  AVmkle 
Fislxcr  V.  Duncan  ' 

».  Farley 
^.  Forrester 
^.  Leacli 
^.  Stevens 
Fisk  V.  >mier 
FitcU  V.  Bunch 

11.  Lothrop 
Fitz  V.  Boston 
F  So-erald  «.  Alexander 

°  t,.  Williams 

Fitzgibbon  v.  Ivcnney 
Fitzpatrick  v.  Harris 
Flack  «.  Neill 
Flanagan  «.  Ernest 

D.  Newberg 
Flanders  v.  Colby 
«.  Davis 
V.  jNIeath 
Flateau  i'.  Lvibeck 
Fleet  V.  Hollenkamp 

V.  Young 
Fleming  v.  Gilbert 

-y.  Hollenback 
V.  State 
Flemming«.  Hammond 

«.  Marine 
Fletcher  v.  Blair 
<».  State 
Flint  V.  Clark 
Floersh  e.  Bank 
Flourncy  «.  Coxe 
Flournoy  v-  Smitn 
Flowers  i'.  Helm 
Floyd  V.  Bethell 
«.  Hamilton 
^.  Jayne 
i\  Rice 
Folger  V.  Eouanet 
Folk  V.  Wilson 
Follin  V.  Coogan 
Folsom  «.  Brown 

y.  Manchester 
Font «.  Massey 
Fonts  V.  State 
Foot  «.  Sabin 
V.  Silsby 
Foote  t).  Koberts 
Ford  V.  Clark 

■y.  Clements 
V.  Ford 
■B  Tasrgard 
v.  Tilly 
V.  Weir 
Fore  D.Williams 
Forelander  v.  Hicks 


205,  38' 


I  Forester  v.  Watts 
1  Formby  v.  Pnor 
Forrester  v.  Wilson 
Forshee  i5.  Abrams 
Forshcy  v.  Railroad 
Forsyth  «•  Hooper 
Fort  V.  Burnett 
Fortier  v.  Ball 
Foss  V.  AVitham 
'  Fortune  v.  Centre 
1  Foster  v.  Bank 
■y.  Barks 
V.  Berkey 
y.  Callamer 
'0.  Hadduck 
V.  :McO'Blenis 
■y.  Smith 
V.  Steele 
B.  Thompson 
Fondren  t'.  Durfee 
Fountain  i'.  Brown 
'  Fourdrinier  v.  Bradbury 
I  Fouuier  v.  Faggott 
I  Foushee  v.  Lee 
Foust  «.  Yielding 
Fowler  v.  Burdett 
'  v.  Etna 

B.Lee 
v.  Lewis 
V.  Middlesex 
V.  Itlorrill 
V.  Smith 
V.  Swift 
V.  Tuttle 
t,.  Waldrip 

I  Fox  V.  Fox 

t).  Reynolds 
1  Francis  v.  Baker 
'  fl.  ]\Ianhattan 

i).  State 
1  Franklin  v.  Buckingham 
•  V.  Cooper 

V.  Greene 
V.  Pratt 
V.  Small 
V.  State 
V.  Updegraff 

\  Frantz  v.  State 
Frazer  11.  Smith 
Frazicr  y.  Campbell 
Frazier's  v.  Praytor 
301    Freeborn  ..Denham 

143   Freeman  ..Aikell^^^ 

5i5  «.  Edmunds 

^  ,a  D.  Henderson 


PAGE 

193 
272 
589 
245,  31G 
G69 
450 
309 


648 
773 
662 
590 
196 
352 
107 
652 
441 
9,  429 
287 
442 
11 
421 
66,  553 
639 
109 
291 
468 
478 
595 
450 
83 
675 
305 
349 
210 
457,  465 
434 
503 
6,464 
775 
166 
"651 
396 
617 
510 
466 
315 
25 
640 
760 
023 
319 
626 
407,  423 
517 
385 
733 
344 


xl 


TABLE   OF   CASES   CITED. 


PAGE 

Freeman  v.  IMylnnd 

551 

V.  Pattoii 

735 

V.  Price 

124 

V.  Rankin 

42,59 

V.  Sciirlock 

279 

Fremantle  v.  London 

355 

Fremon  v.  Carondelet 

659 

French  v.  Brandon 

420 

V.  Garner 

610 

V.  Howard 

719 

V.  Lowry 

447 

V.  Roll 

456 

V.  Snell 

760 

V.  Stanley 

59 

V.  While 

309 

V.  Willard 

449 

Friar  v.  State 

515 

Frost  V.  Goddard 

88,  98 

V.  Martin 

286,  336 

Fry  V.  Bennett                26 

27,  225, 

228,  368 

Fulkerson  v.  Bollinger 

457 

FuUam  v.  Cummings 

57 

Fuller  V.  Bradley 

324 

V.  Plutchings 

526 

V.  Kennebec 

129 

V.  Robb 

640 

V.  Ruby 

24,  40 

V.  Wright 

513 

Funk  V.  Elly 

187 

Funkcrstein  v.  Elgutter 

705 

Funkliouser  v.  Pogue 

457 

Furuess  v.  Meek 

326 

G. 

Gage  V.  Ladd  107 

V.  ]VIcIlwaine  417 

V.  Parker  349 

Gaines  v.  Com.  398 

Gainsford  w.  Blatchford  124 

Gaither  v.  Fercbee  277 

V.  Myrick  295 

Galbreath  v.  Atkinson  139 

Gale  V.  Butler  733 

V.  Wells  303 

Galena  v.  Jacobs  296 

Gales  V.  Shipp  82 

Gallagher  v.  Williamson  258 

Gallaway  v.  Alexander  589 

Qambart  v.  ]\Iayne  495 

Gamble  ?).  Campbell  609 

Gaut  V.  llurtsucker  7 

Garcelon  v.  Hampden  319 

Garde  v.  Love  58 

Gardner  v.  Boothe  349 


PAGE 

Gardner  v.  Clark 

42, 

295 

V.  Deedrich 

743 

V.  Dill 

101 

■y.  Gooch 

26 

V.  Jenkins 

601 

V.  Mayne        49G, 

499, 

507 

v.  Mitchell 

504, 

505 

V.  Pickett       263, 

269, 

287 

Garland  v.  Davis 

144 

V.  Holmes 

103 

V.  State 

481 

Garlick  v.  McArthur 

589 

Garlington 

785 

Garner  v.  Crenshaw 

405 

V.  Cutler 

450 

Garnett  v.  Holloway 

295 

V.  Kirkman      80 

283 

298 

Garr  v.  Paulmier 

081 

V.  Stokes 

673 

Garret  v.  State 

•   88 

Garrett  v.  Gouter 

121 

,  254 

Garrish  v.  INIace 

351 

Garsed  v.  Turner 

266 

Garvin  v.  Wells 

677 

Gass  V.  Bean 

622 

Gast  V.  Parker 

60 

Gaster  v.  Hodgins 

447 

Gatlin  v.  Kilpatrick 

591 

Galling  v.  Newell 

811 

Gauldin  v.  Crawtbrd 

16 

(Taulier  v.  Franklin 

647 

Gay  V.  Lemle 

446 

V.  3IcGuffin 

386 

V.  Richardson 

663 

V.  Smith 

679 

Geisler  v.  Acosta 

749 

Gelhaar  v.  Ross 

483 

Gelpccke  v.  Lovell 

334 

Gentry  v.  Hutchcraft 

639 

V.  McKehcn 

540 

George  v.  Starrett 

678 

Georgia  v.  Brailsford 

593 

V.  Scott 

58 

Gerl)ier  v.  Emery 

53 

Gerke  v.  California 

257 

Gervais  v.  Powers 

693 

Gest  V.  Kenner 

649 

Gholston  V.  McCallum 

3G1 

Gibson  t).  Hill 

35 

3,  467 

V.  Lewis 

139 

V.  Moore 

597 

V.  Webster 

444 

GifFen  «.  St.  Clair 

743 

Gilbert  v.  Burtenshaw 

562 

,  563, 
583 

V.  Woodbury 

569 

Gilbreth  v.  Brown 

706 

TABLE   OF   CASES   CITED. 


448,  491, 


Giles  V.  State 
Gillespie  v.  Benson     , 
^      V.  ShulelJcrner 
V.  Stone 
Gilkey  v.  Kecler 
«.  Peeler 
Gillett  V.  Campbell 

V.  Sweat 
Gillian  «.  Nixon 
Gilmanton  v.  Ham 
Gilmer  v.  Montgomery 
Gilt  V.  AVarner 
Gist  V.  Mason 
Gitliam  v-  State 
Given  v.  Cliarron 
Givens  v.  Blocker 
Glarkin  v.  Zellcr 
Glascock  V.  Manor 
GlaS£?ow  V.  Isloove 
Glasley  v.  Ilestonville 
Gleason  v.  Bremen 
Gleisesv.McHatton 
Glenn  -y.  Black 
Glidden  v.  Dunlap 
^.  Towle 
GlideweU  v.  Daggy 
Glover  v.  Cliase 
V,  Duble 
^^  llolbrook 
fl.  AVoolsey 
Godcbanse  ».  Mulford 
Goddard  t^  PeTkms 
V.  Gardner 
Goetz  V.  Ambs 
Gold  y.  Ives 
Golden  «.  State 
Goldsby  v.  Gentle 

1,.  Robertson 
Goldsmith  v.  Picard 
'».  Sefton 
-».  Solomons 
Goneke  v.  Garrett 
Gonzales  n.Leon 
Good  V.  Combs 
Goodallt'.Batchelder 

V.  Tbnrman 
Goode  V.  Smitb 

I,.  Wiggins 
Goodell  «.  Woodruff 
Goodeuow  v.  Staltoia 
Goodman  v.  Gay 

V.  Norton 
V.  Simonds 
V.  Smitb 
V,  AValker 
Goodrich  v.  Eastern 


""■TtH  Goodrich  ..Willard 
514    Goodridge  «-/^"f .  „ 

c^W-^-^^:iiffi:y 

4i7   Goodwyn.X^^om.^^^^^^^ 

^^^  '  V.  Lovell 

Goolsby  ^.  Case 
Gordon  v.  Crooks 
r.  Dill 
V.  Ellison 
■c,  Goodell 
V.  I^Iillandon 
^.  Norman 
V.  Pitt 
11.  Ryan 
1}>IY  1  Gore  V.  Moses 
671    Gorgerat »  McCarty 
'-.I  ->    Gorham  iJ.  LurKeu 
451   457   Gorman.  McFarland 
'  ?02   Gorton  v.  Hadsell 
Goss  D.  McClaren 
Gough  V.  Bratt 

«.  Everard 
V.  Farr 
tj.  Manning 
c.  Pratt 
V.  Matthewson 
Gould  «.  Tatum 
V.  Wbite 

Gover  «•  Dill 
V.  Hall 
B.  Turner 

Governor  v.  Barrow 
■y.  Campbell 


25;) 
94 

58 

648 

201 

417 

539 

496,  539 

88 

308 

697 


580 
614 
90 
34,  458,  501 
221 
111 
767 
306 
50 
187,  518 
22 
259,  260 
56 
563, 


tl^'il    Grace  ^.Hannah 


265 
88 
405 
88 
579 
224 
669 
135 
431 
1 
348,  563,  585 
95 


656 

447 

754 

137 

373 

311 

451 

436 

380 


Graeter  v.  Fowler 
Graff  V.  Pittsburg 
Graft  V.  Dietz 
Gragg  'w.Hull 
Graham  v.  Baync 
V.  Bradley 
V.  Davis 
1).  Gautier 
1).  Houston 
V.  McCreary 
v.  Merrill 
r.  Boark 
I-  "Roberts 
r.  Smith 
V  Wilson 
Grandy  v.  Humphries 
Granger  I'.  Buzick 

V.  Warrington 
Grant  v.  Latbrop 
V.  Moore 
^.  People 


xli 

PAGE 

766 
651 
150 
175 
473 
104 
435,  441 
775 
444,  445 
98 
710 
90 
393 
454 
97 
108 
13 
549 
721 
109 
318 
82 
600 
353 
585 
737 
609 
770 
11 
58,  62 
98,  305 
715 
134 
590 
40 
49 
540 
284 
756 
359 
646 
59 
398 
406 
58 
640 
733 
91 
603 
350 
653 
718 
721 
34 
614 
11 
645 


xlii 


TABLE   OP   CASES   CITED. 


PAGE  1 

PAGE 

Granville  v.  Hampden 

C89j 

Grubb  V.  Kalb 

450,  502 

Gratz  V.  Bcates 

301 

V.  jNIcClatchy 

458 

V.  Beuncr 

190 

Grube  v.  Nichols 

294 

Gravenor  v.  "Woodhouse 

407 

Guard  v.  Risk 

101,  540 

Gravely  v.  Southerland 

604' 

Gufley  V.  Moseley 

546 

Graves  v.  Graves 

390, 

Guilford  v.  State 

481 

Gray  v.  Bridge 

G 

Gulledge  v.  Howard 

485 

t\  Burk 

227,  293  , 

Gunter  v.  Leckey 

273 

V.  Jones 

753 

Gurney  v.  Dessies 

417 

V.  Grundy 

713 

Guthrie  v.  AVilson 

640 

V.  Harrison 

502 

Gutshall  V.  Salsberry 

616 

V.  St.  John 

403 

Guy  V.  Tarns 

103 

V.  Siugerley 

522 

Guykowski  v.  People 

167 

V.  Thomas 

109 

Guyot  «.  Butts 

501,  505 

Grayson  v.  Com.    79,  113, 

114,449. 

Gwinn  v.  Newton 

604 

473 

Gwilt  V.  Crawley 

551 

Greathouse  v.  Hord 

593 

Greatwood  v.  Sims 

554 

Greely  v.  McNabb 

295 

H. 

Green  v.  Clay 

223 

v.  Grain 

318 

Hackett  v.  Railroad 

290 

V.  Gould 

399 

V.  King 

26 

V.  Lewis 

386 

Hackley  v.  Hastie        215 

220,  249 

i\  Robinson 

105 

Pladley  v.  Dunlap 

731 

V.  Telfair 

354 

llager  v.  Weston 

756 

V.  Wood 

775 

Hagerstown  v.  Adams 

282 

Greeuawalt  v.  Shannon 

727 

Ilaggett  V.  Com. 

670 

Greene  v.  Dingley 

61,  331 

Hahn  v.  Hart 

594 

Greenleaf  v.  jSIaher 

612 

Haight  V.  Turner 

246,  453 

Greenlee  v.  McCoy 

638 

Haines  v.  Corliss 

662 

Greenup  v.  Stoker          59 

155,  1G7 

V.  Paxton 

636 

Greenville  v.  Partlow 

300 

Hakman  v.  Sheaflfer 

640 

Greer  v.  Archer 

96,  255 

Ilalbert  v.  Halbert 

345 

Gregg  V.  Bankhead 

501 

Hale  V.  Cove 

66,  100 

V.  McDaniel 

199 

V.  Crowell 

«40 

Gregory  v.  liichards 

282 

V.  Darter 

296 

V.  Walker 

421 

V.  York 

143 

Gresham  v.  Pjn-on 

786 

Hall's 

318 

Griffin  v.  Ci-anston 

713 

Hall  V.  Denise 

98 

V.  Wilson 

651,  602 

V.  Gale 

562 

Griffith  V.  ]\IcCullum 

360 

v.  Green 

481 

V.  Thompson 

607 

V.  Lowell 

355 

'•.  Williams 

70 

V.  Mills 

728 

■c.  Willing 

489 

V.  Morrison 

466 

Grimes  v.  Bush 

361 

V.  Page 

445 

Grlmke  v.  Houseman 

469 

V.  Patterson 

421 

Grimm  v.  Hamcl 

426 

V.  Robinson 

243,  247 

Grinuel  ®.  Phillips 

157 

V.  Rupley 

218 

Grist  V.  Backhouse 

103 

V.  State 

374 

Griswold  v.  liutland 

768 

V.  Stothard 

552 

Groft  V.  Weakland 

384 

V.  Tultle 

869 

Gross  V.  State 

194 

V.  Wheeler 

344 

Grosvenor  v.  Atlantic 

46 

V.  Wight 

470 

V.  Danforth 

629 

V.  Woodside 

263 

Groton 

389 

V.  Woolcott 

624 

Grover  v.  Coon 

705 

Hallam  v.  Jacks 

640 

Groves  v.  Ruby 

2 

V.  Haywood 

485 

TABLE   OF   CASES   CITED. 


xliii 


PAGE 

PAGE 

Halloway  v.  Hallo-way 

109 

Harmison  v.  Clark 

405 

IlallowcH's 

708 

Harmon  v.  Thorneton 

88 

Halscy  y.  "Watson 

506 

Harusbarger  v.  Kenuey 

244 

,499 

Ham  V.  Barrett 

284 

544 

606 

V.  Ham 

406 

499 

Harper  y.  Curtis 

397 

V.  Taylor 

511 

V.  Baker 

738 

Hambett  v.  Hambctt 

410 

V.  Hill 

612 

Hambletou  v.  Dempsey 

131 

V.  I\[iner 

112 

V.  Vere 

126 

V.  Parker 

442 

Hames  v.  Hatliaway 

649 

Harrell  v.  Hill 

102 

Hamilton  v.  Adams 

612 

Harriman  v.  State 

165 

V.  Couyers 

21 

V.  Wilkins 

218 

V.  Rico 

137 

Harrington  v.  Biglow 

505 

V.  State 

268 

V.  Roberta 

663 

Hamilton's -y.  Moody 

392 

Harris  v.  Bradden 

141 

Hammitt  v.  BuUett 

40 

V.  Doe 

59 

V.  Coffin 

637 

V.  Gwin 

590 

Hammond  v.  Kemer 

391 

V.  Holmes 

425 

V.  People 

623 

703 

V.  Plant 

631 

V.  St.  John 

616 

V.  Preston 

638 

V.  "Wadham's 

456 

508 

V.  Ray 

109 

Hampton  v.  Thomas 

469 

V.  State 

785 

V.  Watterson 

146 

V.  Williams 

679 

Hamrick  v.  Rouse 

637 

V.  Wilson 

306 

Hanby  v.  Tucker 

457 

Harrisburg  v.  Forster 

193 

Hancock  v.  Loomia 

224 

Harrison  v.  Cacheliu 

79 

296 

V.  Metz 

663 

V.  Chipp 

688 

V.  Salmon 

220 

V.  Cotton 

391 

V.  Tucker 

457 

V.  Harrison 

555 

V.  Winana 

238 

V.  Jaquess 

149 

Handley  v.  Call          193, 

408, 

434, 

V.  Kramer 

730 

479 

500 

V.  McGehee 

381 

Handy  v.  Davis 

552 

V.  Morton 

305 

Haney  v.  Marshall 

263 

V.  Powell 

101 

Hanger  v.  Dodge 

148 

V.  Rowan 

199 

488 

Hanna  v.  Renfro 

43, 

426 

V.  Singleton 

141, 

712 

Hannah  v.  Putnam 

713 

V.  Thompson 

203 

Hannibal  v.  Moore 

277 

V.  Sale 

576 

Hannum  v.  Belchertown 

246, 

Harry  v.  "Watson 

576 

265 

445 

Hart  V.  Funk 

739 

753 

Harbour  v.  Rayburn 

458 

515 

V.  Girard 

340 

347 

Hard  t.  Brown 

36 

V.  Tallmadge 

169 

Hardin  v.  Crist 

725 

Harting  v.  People 

713 

V.  Inferior 

8 

Hartshorn  v.  Day 

669 

Harding  v.  Brooks 

476 

Hartwright  v.  Bradham 

187, 

490 

Hardy  v.  Providence 

244 

Hartzell  v.  Com. 

156 

V.  Seelye 

713 

Harvey  v.  Eppa 

89 

V.  S])rowle 

188 

V.  Graham 

223 

V.  Wadsworth 

95 

V.  Laflin 

24 

Hare  v.  State 

203 

214 

V.  Rickett 

163 

Harger  v.  Commissioners 

623 

V.  Skipwith 

295 

Hargis  v.  Price 

53 

V.  Spaulding 

730 

Hargraves  v.  Lewis 

663 

669 

Harwood  v.  Smehurst 

536 

Harlow  v.  Humiston 

375 

Hasbrouck  v.  Tappeu 

571 

Harman  v.  Brothcrson 

675 

Haskell  v.  Becket 

85 

V.  Childress 

142 

Haskins  v.  Hamilton 

333 

V.  Kelly 

639 

V.  Haskins 

200 

xliv 


TABLE   OF   CASES   CITED. 


PAGE 

r 

AGE 

Haskins  v.  Smith 

433,  .143 

Helm  V.  Rodgers 

391 

Ilass  V.  Evans 

103 

Helms  V.  State 

213 

llassott  V.  Payne 

170 

Hemmenway  v.  Hicks 

630 

Hastings  v.  IJangor 

303 

Hemphill  v.  Salada'y 

045 

V.  Ilalleclc 

704 

Hcmjistead  v.  Watkins 

591 

V.  Hastings 

172 

Ilenckley  v.  Ilondrickson 

540 

V.  Stark 

450 

Henderson  v.  Adams 

655 

V.  Vaughan 

311 

V.  Bates 

615 

Hatch  V.  Allen 

733 

V.  Garrett 

612 

V.  Cariienter 

418 

V.  Hamer 

393 

V.  Garsa 

297 

V.  Moore 

405 

V.  Potter 

35 

V.  State 

512 

Hatcher  v.  State 

225 

V.  Wimble 

646 

Hathaway  v.  Crosby 

oG5 

Hendrick  v.  Cannon 

593 

v.  Helmer 

15G 

v..  Kellogg 

312 

V.  Rj-an 

122 

V.  Robinson 

610 

Ilatton  i\  ]\IcC]ish 

383,  420 

Ilendrick's 

163 

Hawk  V.  Deuel 

078 

Hendricks  v.  State 

345 

V.  llidg\yay 

302,  503 

Hendrickson  v.  Anderson 

357 

Hawkins  v.  Alder 

480,  490 

i).  Hiuchley    590 

59r 

V.  Bowie 

625 

V.  Kingsbury 

159 

V.  Lowry 

109 

Hendry  v.  Smith 

458 

Hawks  V.  Deveuport 

103 

V.  Sharp 

456 

V.  State 

187 

Henley  v.  Branch 

649 

Haws  v.  Gnstin 

191 

V.  Robertson 

613 

Hawthorne  v.  Bowman 

433, 550 

Hennen  v.  Gilman 

88 

Haycock  v.  Greup 

149 

Henry  v.  Cooper 

710 

Haydeu  v.  Palmer 

60 

V.  Evarts 

420 

Haj'es  V.  Keyou 

81 

V.  Hasley 

140 

Haynes  v.  Hayward 

433 

V.  Jones 

307 

V.  IMorgan 

103 

D.  Kaufman 

718 

1).  Tliomas 

299 

V.  Raiman 

153 

Hays  V.  Caldwell 

634 

HenshaAV  i).  Supervisors 

691 

V.  Gorby 

693 

Henson  v.  King 

368 

V.  Hays 

331 

Ilerber  v.  State 

507 

V.  Paul 

338 

Herbert  v.  Ilanrick 

400 

V.  AValdron 

331 

Herdic  v.  Bilger 

353 

Hayward  v.  Calhoun 

83 

Hereford  v.  Babin 

591 

V.  Duncklee 

435 

Herndon  v.  Bryant 

295 

V.  Newton 

573 

Herring  v.  State 

401 

Haywood  v.  Harmon 

331 

Hersey  v.  Verrill 

97 

Hazard  v.  Israel 

584 

Hess  V.  Johnson 

456 

Ilazen  v.  Henry 

449 

V.  Newcomer 

334 

Hazlolnirst  v.  Morris 

713 

Hessing  v.  McClosky    250, 261 

,269 

Head  V.  Langworthy 

13 

Hester  v.  State" 

432 

Heald  v.  Wells 

702 

Hettrick  v.  Wilson 

639 

Heath  v.  Hand 

616 

Hewlett  V.  Cock 

423 

V.  Marshall 

420 

V.  Crouchley 

562 

V.  Page 

380 

Heyward  v.  Bath 

435 

Heath's 

186 

V.  Bennett 

143 

Ileaton  v.  Manhattan 

504 

Hibler  v.  McCartney 

273 

Hedgepeth  v.  Robertson 

283 

Hicks  V.  Bailey 

383 

Ileeron  v.  Beckwith 

145 

V.  Blake 

448 

HefTron  v.  Gallup 

249 

V.  Davis 

311 

Hegler  v.  Henckell 

41 

V.  Gilliam 

748 

Heighler  v.  Savage 

593 

V.  AVilson 

11 

Helm  V.  Jones 

547 

Hidden  v.  Jordan 

74 

TABLE   OF   CASES   CITED. 


xlv 


Higboe  V.  Bacon 
Higbie  v.  Conistock 
Higdcn  V.  Higden 
Higgans  v.  Lee 
Pliiifirins  v.  Breen 


PAGE 

21 

625 

49G 

121 

39 

High  V.  Wilson  484 

Highland  v.  Wynkoop  57 

Higlimore  v.  Harrington  582 

Hiidreth  v.  Slartiu  90 

Hill  V.  Canfield  273,  295,  628 

V.  Deaver  79 

V.  Hobart  331,  333 

V.  Irwin  528 

V.  Meyers  47,  413 

V.  New  Haven  360 

V.  Portland  331 

V.  Vanduzer  502 

V.  Ward  96 

■V.  AVhite  730 

V.  Wilkins  9,  79 

Hillebraut  v.  Ashworth  468 

V.  Brewer  34 

Hilliard  v.  Carr  8 

V.  Goold  311 

Hill's  235 

Hills  V.  London  329 

Hilton  V.  Sonthwick  203 

Himblewright  v.  Armstrong         39 

Hinchman  v.  Clark  188 

Hiudle  V.  Birch  179 

Hinds  V.  Terry  91,  515 

Hines  v.  State             155,  175,  231, 

247,  342 

Hinman  v.  Swift  772 

Hinson  v.  King  366 

Hipp  V.  Ingram  37 

Hirch  V.  Patterson  47 

Hite  V.  Bradford  295 

V.  Kier  71 

V.  Lenhart  525 

Hix  V.  Drury  220,  249 

Hoar  V.  Mill  70 

Hobbes  v.  Beckwith  634 

Hobbs  V.  Outlaw  42 

Hobson  V.  Doe  763 

Hodges  V.  Planters  406 

■V.  Rutland  629 

V.  Springer  415 

Hodgson  V.  Barvis  66 

Hoffman  v.  Etna  301 

V.  Gordon  9 

Hogg  V.  State  373 

Hogshead  v.  State  166,  200 

Hoit  V.  Ilolcomb  263 

liolbert  v.  Montgomery  76 

Holbrook  v.  Coney  721 

V.  Cook  622,  634 


PAGE 

!  Holbrook  v.  Jackson 

94 

419 

1                   V.  Nichol 

545 

V.  Utica 

385 

V.  Wright 

96 

Holburn  v.  Ncal 

553 

Ilolcombe  v.  State 

462 

Holden  v.  Bloxum 

256 

V.  Cole 

98 

V.  Liverpool 

357 

Holford  V.  Alexander 

641 

Holland  v.  Dale 

607 

Holliday  v.  Atkinson 

307 

V.  People 

7 

Hollingsworth  v.  Duane 

107 

Holliushead  v.  Van  Glahn 

648 

HoUis  V.  Caugham 

635 

Hollister  v.  Johnson 

307 

V.  Judges 

774 

Hollow-ell  V.  Cheek 

29 

HoUoway  v.  Baker 

757 

V.  Cotter 

280 

Holly  V.  Christopher 

559 

Holman  v.  Dord 

466 

V.  Martin 

350 

V.  Riddle 

244 

V.  Sigourney 

706 

V.  State           120 

495 

,520 

Holmes  v.  Chieftain 

541 

V.  Doane 

272 

D.  Jamison 

623 

V.  Watson 

355 

356 

V.  Wood 

624 

Holsenback  v.  Martin 

743 

Holton  V.  Adcock 

474 

V.  Ruggles 

707 

Homerton  v.  liolt 

482 

Hone  V.  Woolsey 

593 

Hood  V.  Hood 

271 

V.  Ware 

575 

Hore  V.  Lockwood 

8 

Hook  V.  Craghead 

43 

V.  Stovall 

437 

Hooker  «.  Johnson 

307 

397 

Hooks  V.  Branch 

674 

Hooksett  V.  Amoskeag 

256 

305 

Hooper  v.  Farwell 

748 

Hope  V.  Atkins 

496 

Hopkins  i'.  Atkins 

690 

V.  Clark 

401, 

416 

V.  Commonwealth 

23 

V.  Forsyth 

428 

V.  Fowler 

263 

V.  GrinncU 

376 

V.  Tilmau 

449 

Hopkinson  ■?;.  Steel 

399 

Hopper  V.  Kalkman 

715, 

786 

V.  Smith 

555 

xlvi 


TABLE    OF   CASES    CITED. 


PAGE 

Ilonl  V.  Grimes  261 

Ilorlbrd  r.  Wilson  415 

lIonuT  )'.  Kobcrts  632 

Ilorsely  v.  Branch  144 

■i>.  Hopkins  718 

Horton  v.  Iloiton  2:53 

V.  Tliornliill  71 G 

V.  Windlc  679 

Hosford  V.  Wilson  58 

Iloskins  ?'.  llattcnback  588 

Ilosley  ;'.  Black  433 

llotclikins  V.  Hodge  447 

Hotchkiss  V.  Porter  376 

Hott  V.  Rees  671 

Hottle  V.  Kindle  663 

Hou.^h  V.  Baldwin  645 

Houirlitaling  t\  Ball  279,  344 

Houghton  V.  Slack  7,  15 

Housatonic  v.  Kno^Yles  470 

House  V.  Wright  13,  213,  518 

Houston  V.  Gilbert  64 

V.  Perry      '  131 

V.  Smith  510 

V.  Wolcott  597 

Hovey  v.  Chase  261 

V.  Ilobson  256,  418 

V.  Luce  569 

V.  Niles  767 

V.  Thompson  217,  294 

How  1).  Strode  308 

Howard  v.  Browne  43 

V.  Capron  101 

V.  Carpenter  340 

v.  Grover  496 

V.  Havward  94 

V.  Hil'l  632 

V.  Holbrook  46 

V.  IMincr  59 

v.  3Iurphy  666 

V.  Kay  447 

Howe  V.  Huntington  331 

V.  Kcc'ler  344,  469 

V.  Slate  711 

Howell  V.  Howell  545 

V.  Pitman  638 

V.  State  604 

Howes  V.  Gillet  6 

Howcrton  y.  State  179 

Howland  v.  Giflbrd  174 

V.  Sheriir  220 

Howse  V.  Judson  661 

Howser  v.  Commonwealth  10 

Hoyt  V.  Brooks  713,  715 

V.  Dimon  45 

V.  Gilman  276 

V.  ]\Iurphy  72 

V.  Smith  719 


PAGE 

Hoxie  V.  County 

780 

V.  Home 

90, 

229 

Hubard  v.  Russell 

88 

Huckle  V.  Mooney 

562 

579 

Hubbert  v.  Collier 

103 

IIubl)y  y.  Stokes 

45 

Huebsch  v.  Baker 

602 

Huelsenkamp  v.  Citizen 

359 

Huey  V.  Huey 

394 

Hudspeth  v.  Allen 

573 

Hudson  V.  Crow 

95 

V.  Kline 

607 

V.  Pettyjohn 

755 

V.  State 

239 

V.  Wier 

311 

V.  AYilliamson 

14, 

445 

Huffman  v.  Ackery 

305 

Hugg  V.  Riler 

168 

Huggins  V.  King 

600 

llughart  V.  Gliddens 

755 

Hughes  V.  Jackson 

82 

V.  Maddox 

636 

V.  Monty 

301 

V.  Robinson 

109 

V.  Sticking 

40 

Hugo  V.  Payne 

173 

Hugley  V.  Ilolstein 

239 

Huisli  v.  Sheldon 

506 

Hull  V.  Alexander 

225, 

451 

Hulett  V.  Matheson 

713 

Humbert  v.  Eskert 

79 

Humphrey  v.  Burge 

107 

V.  Havens 

496 

V.  Hazlep 

719 

V.  Sears 

745 

Humphreys  v.  Leggett 

006 

Humphries  v.  Marshall 

31, 

515 

V.  Parker 

355 

584 

Hunter  v.  Reves 

662, 

603 

Hungerford  v.  Gushing 

730 

V.  Sigcrson 

591 

Hunnewell  v.  Hobart 

296 

459 

Hunt  V.  Barrel 

484 

V.  Bennett 

46, 

288 

V.  Coachman 

594 

V.  Crane 

261 

V.  Hoboken 

435, 

449 

V.  Hunt 

453 

Hunter  v.  Dickerson 

63 

V.  Hubbard 

346 

V.  Humplirios 

7-23 

V.  Osterhoudt 

318 

■y.W^aite 

88 

V.  State 

324, 

711 

Huntington  v.  Bell 

310 

616 

V.  IVIcGovern 

646 

V.  Conkey 

604 

TABLE 

OF   CASES    CITED. 

^  PAGE  1 

Huntington  v.  Drake 

517 

Jack  V.  Naber 

Huntsman  v.  Jarvis 

6 

V.  State 

Hurbcrt  i\  Dumout 

637 

Jackson  v.  Bank 

Hurt  V.  State 

391 

V.  Barron 

Huston  V.  Huston 

75G 

V.  Cannon 

Huichiusou  V.  Bruce 

98 

V.  Cody 

V.  Coleman 

448 

V.  Cristraan 

V.  CommonTvealth 

073 

t).J)avis 
-B.l^ickeuson 

V.  Gurley            88 

709 

V.  Mctliuen 

402 

V.  Falsett 

V.  Moody 

50 

V.  Hawks 

Huyett  V.  Pliiladelpliia 

357 

V.  Hooker 

Hylliard  v.  Nickols 

125 

V.  Hopperton 

Hyman  v.  Cook 

674 

V.  Jackson 

V.  Leaman 

646 

V.  Kinney 

Hynds  v.  Hays 

276 

V.  Lagget 

Hypfuer  v.  Walsh 

342 

V.  Packard 
V.  Packer 
V.  Peck 

I. 

V.  People 
V.  Roe 

Iglehart  i\  Downs 

460 

V.  Rutherford 

lUies  «.  Diercks 

577 

V.  Sacramento 

Illingswortli  v.  Greenleaf 

413 

V.  Simmerman 

Illinois  V.  Cassel 

329 

V.  Sternhergh 

V.  Simmons 

580 

V.  Warford 

V.  AVliittemore 

331 

Jacob  V.  McLean 

Imlioof  V.  Chicago 

628 

Jacobs  V.  Barger 

Indiana  v.  Covett 

335 

V.  Dooly 

Indianajiolis  v.  Taffe 

136 

V.  United  States 

IngersoU  v.  Bostwick 

709 

Jaeger  v.  Kelly 

Ingerson  v.  Miller 

586 

Jamagin  v.  State 

Ingram  v.  Crary 

409 

James  «.  Gray 

V.  IMarshall 

313 

V.  Herring 

V.  Russell 

570 

«.  Landon 

V.  South  Carolina 

59 

Jameson  v.  Androscoggin 

Inhts.  V.  Co.                         689 

,  693 

Jamisons.  Wray 

Inman  v.  Strattan 

713 

V.  Reid 

Innerarity  t\  Byrne 

644 

Jamson  v.  Quivey 

Insurance  Co.  v.  Mordecai 

725 

Jaqueth  v.  Jackson 

Irwin  V.  Gallagher 

660 

Jaquius  v.  Commonwealth 

V.  Jones 

165 

Jaruagan  v.  Atkinson 

V.  jSIonell 

458 

Jarvis  v.  Chandler 

V.  Trego 

46 

Jeffersonville  v.  Swift 

V.  Wickersham 

39 

Jeffry  v.  Wood 

Isaac  V.  State 

175 

Jemigan  v.  Waiuer 

Isaacs  V.  Beth 

708 

Jemison  v.  Hearings 

Ish  V.  Chilton 

311 

Jeness  v.  Berry 

Ives  V.  Finch 

651 

Jenkins  v.  Banning 

Ivey  V.  Gamble 

140 

V.  Brown 

v.  Owens 

298 

V.  Frink 
V.  McConico 
V.  Parkhill 

J. 

v.  Whitehead 
Jenne  v.  Joslyn 

Jaccard  v.  Anderson 

307 

Jenness  v.  Berry 

V.  Davis 

124 

Jennings  v.  Aster 

xlvii 


PAGE 

244 
198 
637 
435 
505 
556 
453,  557 
556 
251 

76 
242 
509 
581 
556 
509 
275 
367 
458 
349 
692 
542 
485 
144 
349 
448 
125,  538 
550 

88 
242 
664 
427 
235 
668 
464 

57 

83 
590,  599 
784 
377 
002 
028 
391 
589 
295 
017 
519 
295 
402 
639 
389 
11,  111 

93 
111 
445 
437 
328 
168 


xlviii 


TABLE    OF    CASES    CITED. 


Jennings  v.  Com. 
V.  Loriug 
V.  Warne 
Jenny  v.  Bonier 

)'.  Delesdernier 
Jessup  V.  Cook 
Jewoll  c.  Brandford 
Jewitt  V.  Lincoln 
Jim  r.  TeiTitory 

t'.  State 
Job  V.  Harlan 
Johns  v.  Fuller 
Johnson  v.  Ackles 

V.  Alexander 
V.  Barker 
V.  Brown 
V.  Blanchard 
V.  Connecticut 
V.  Conillard 
V.  Fort 
V.  Hebard 
V. Ilorney 
V.  Holt 
V.  Home 
V.  Jcbb 
V.  Kinney 
«.  ]\[arshall 
v.  IMason 
V.  Parks 
r.  Perry 
V.  Phaxter 
V.  Pliinton 
V.  Plimpton 
V.  Porter 
V.  Scribner 
V.  State 
V.  Stewart 
V.  Taylor 
V.  V/arwick 
V.  Wccdman 
Johnston  v.  Canlkins 

V.  State 
Jones  V.  Block 

V.  Cannock 
V.  Cooke 
V.  Crawford 
V.  Dougherty 
V.  Gilbert 
V.  Hacker 
v.  Ireland 
V.  Jennings 
V.  Julian 
V.  Kilgore 
V.  ]\IcCrea. 
v.  Bansom 
V.  Eodman 
V.  Sparrow 


PAGE 

C31 
499,  nil 
219 
515 
573 
500 

37 

59 
174 
179 
730 
632 
110 

88 
761 
394 
498 
615 

35 
729 
475 
624 
621 
242 
640 
293 
421 
897 
318 
161 
664 
771 
767 
202 
475 
296 
739 

67 
111 
573 
585 

89 
450 
677 
138 
632 
785 

50 
654 
325 
453 
134 
590 
589 
435 
763 
579 


Jones  V.  State 
V.  Taylor 
V.  Trustees 
V.  "Water 
V.  "White 
V.  "Winson 
V.  "Wood 
V.  Van  Zant 
Jordan  v.  Dennis 
V.  Loftin 
V.  IVIeredith 
V.  Thomas 
V.  State 
V.  "Williams 
Jorie  V.  Ilandley 
Josey  V.  "Wilmington 
Joslyn  V.  Sapplington 
Jourdan  ?>,  Keed 
Journey  v.  Sharp 
Judah  V.  "Vincennes 
Judge  V.  Stone 
Jumpcrtz  V.  People 
Justice  V.  Hunt 
Justices  V.  Plank 

V.  Barrington 
V.  Simmons 


Kain  v.  Gradon 
Kane  v.  Burrus 
Kauouse  v.  Martin 
Karber  v.  Ncllis 
Karns  v.  Kunkle 
Karriger  v.  Grebb 
Katz  V.  Moore 
Kaufman  v.  Bott 
Keag  V.  Haite 
Kean  v.  Vaughan 
Kcate  V.  Temple 
Keating  v.  Bradford 
Keaton  v.  Governor 

V.  State 
Keel  v.^eni]j 
Keeler  v.  Niagara 
Keen  v.  Hopkins 
V.  Turner 
Keener  v.  State 
Kcenan  v.  State 
Ivoighler  v.  Savage 
Keither  v.  State 
Keirle  v.  Shriver 
Keller  v.  Blasdel 
V.  Dillon 
Kellip  V.  Empire 
Kellog  V.  Budlong 


PAGE 

131,  142,  250,  296 
405 


156, 


231, 


644 

64 

499 

355 
276 
571 
678 

589 

174 

597 

523 

GU 

649 

190,  563 

713 

447 

311 

78,  406 

398,  406 

23G,  237 

690 

40 

35 

742 


749 
504 
652 
388 
646,  651 
295 
499 
450 
447 
771 
65 
634 
446 
269 
713 
353 
149 
633,  735 
156,  258 
155 
704 
465 
713 
526 
254 
112 
476 


667, 


458, 


TABLE   OF   CASES   CITED. 


xlix 


PAGE 

Kellogg  V.  French  223 

Kelly  V.  Crawford  427 

V.  Miller  122,  485 

V.  Muse  747 

V.  State  87 

V.  Wiesman  616 

Kelsey  v.  Ross  638 

Kelso  V.  Townseud  296 

Kemmerer  v.  Edelman  91,  399 

Kendall  v.  Brownson  400 

V.  Weaver  393,  402 

Keudrick  v.  Arnold  615 

Kenna's  v.  Qmirrier's  648 

Kennedy  v.  Cunningham  98 

V.  Cooding  739 

V  North  294,  567 

V.  Shilton  719 

Kent  V.  Charlestown  106 

V.  De  Baun  610 

V.  Hunter  638 

1).  Ricards  589 

V.  Tyson  220,  348 

V.  Whitney  69 

Kentucky  v.  Dennison  776 

Kenworthy  v.  Williams  386 

Kenyon  v.  Clarke  614 

V.  Sutherland  88,  93 

Kettle  V.  Foote  389 

Kerns  v.  Chambers  596 

Key  V.  Allen  576 

Keyes  v.  Throop  411 

Khone  v.  Ins.  Co.  448 

Kidder  v.  Hadley  773 

Kiester  v.  IMiller  313 

Kile  V.  Thompson  141 

V.  Tubbs  408 

Kiler  v.  Kimball  435,  439 

Kilgore  v.  Jordan  102,  312 

Killen  v.  Listrunk  216,  569 

Kilmore  v.  Abdoolah  565 

Kimball  v.  Cody  405 

V.  Batters  335 

V.  Gcarheart  449 

V.  Irish  82 

v.  Riggin  712 

Kimberlin  v.  Farris  30,  412 

Kindred  v.  Bagg  98 

King  V.  Bear  115 

V.  Davis  117 

V.  Dunn  666 

V.  Faher  239 

V.  Francis  482 

V.  Hunt  171 

V.  King  295 

V.  Mnson  481 

V.  Poole  128 

V.  Pope  274 

4 


PAGE 

King  V.  State  156,  433 

V.  Sutton              102,  214,  289 

V.  Teal  416 

V.  Tremearne  170 

V.  Woodfall  251 

Kingsland  v.  Bartlett  720 

Kinney  v.  Ogden  594 

Kinnicutt  ■».  Stockwell  7 

Kinsey  v.  Sensboughs  723 

V.  Wallace  584 

Kinsman  v.  Paigo  655,  676 

Kinter  v.  Jenks  26 

Kipp  V.  Den  302 

Kirby  v.  State  114,  147 

V.  Waterford     501,  502,  508 

Kirby' 8  162 

Kirk  V.  Reynolds  709 

V.  Wilds  273 

Kirkland  v.  Gates  296 

Kirkwood  v.  Gordon  368 

Kitchen  v.  Reinsky  526 

Klien  v.  Franklin  78 

Klemm  v.  Dewes  653 

Kline  v.  Gundrum  648 

Klingensmith  v.  Klingensmith  839 

Klockenbaun  v.  Pierson  545 

Knapp  V.  Croslev  625 

V.  Marshall  494 

Knickerbocker  v.  Anderson        450 

Knight  V.  Bravvner  723 

V.  Egerton  376 

V.  Freeport  206 

i\  Mantz  458 

Knott  V.  Jarboe  603 

Knowles  v.  Dow  49 

Knowlton  v.  McMahon  243 

Knox  v.  Breed  146 

V.  Bigelow  526 

V.  Coroner  607 

V.  Costello  662 

V.  Easton  261 

V.  Stark  643 

V.  Steele  663 

V.  Work  496 

Koester  v.  Esslinger  444 

Krickbaum  v.  Bridges  596 

Kuehler  v.  People  19 

Kuns  V.  Young  311,  338 

Kurlbaum  v.  Roepko  121 

Kyendall  v.  Clinton  13 


Laber  v.  Cooper 
Lackland  v.  North 
Lacy  V.  Fanman 


138,  887,  643 
359 

757 


TABLE    OF   CASES   CITED. 


PAGE 

Lacy  V.  Hall  040 

•i'.  AVilliams  737 

Laild  V.  Prentice  163 

Lailow  V.  Groom  702 

Lafayette  v.  New         1G5,  1G7,  249 

Lallin  r.  Ilerriiiglon  49G,  oOS 

Lake  V.  Cooke  G04 

Lamar  r.  "Williams  301 

Lamb  v.  Anderson  589 

Lamme  v.  Gregg  345 

Lami)liear  v.  Lamprey  717 

Lanahan  v.  Latrobe  747 

Lauding  v.  Russett  285 

Lane  v.  Brown  450 

V.  llolliday  505 

V.  Lantz  737 

Lancy  v.  Bradford  Go,  G8 

Lancsboroiigli  v.  Berkshire         140 

Land  v.  ^lillor  92 

Laufcar  v.  Harper  6 

Lang  V.  Hopkins  450,  5G3 

LangliolT?;.  ISlihvaukee  358 

Langmaid  v.  Putter  GG8 

Lansing  v.  Eddy  590,  G15 

V.  Van  Alstyne  275 

Lansing's  710 

Lautis'  G89 

Lapicce  v.  Hughes  589 

Large  v.  Orvis  321 

Larkin  «.  Avery  441 

Larkins  v.  Tarter  246 

Larillian  v.  Lane  G47 

Larue  v.  Russell  294,  400 

Latham  v.  Bower  713 

V.  Selkirk  449,  500 

Latshaw  v.  Territory  295 

Laughlin  v.  Clawson  355 

Laurent  v.  Vaughau  438 

Lavall  V.  Cromwell  458 

Law  V.  Law  102,  525 

Lawler  v.  Earle  27,  251 

V.  Norris  291 

Lawrence  78G 

Lawrence  v.  Bassett  103 

V.  Collier  186 

V.  .Tarvis  282 

V.  People  147 

V.  Strauss  242 

Lawrenceburg  v.  Montgomery  298 

Layne  v.  Norris  132 

Layson  v.  Galloway  379 

Layton  v.  ILall  370 

V.  State  623 

Lazzcl  V.  3Iaple  387 

Leach  v.  Blackley  700 

V.  Wilburn  270 

Leak  v.  McDonnell  040 


PAGE 

Leake  v.  State  480 

Leavy  v.  lioberts  49G,  501 

Lee  V.  Bradway  135 

V.  Emery  430 

ti.  Ilard-rravc  045 

V.  Schmidt  723 

V.  Oppenheimer  88 

V.  Quirk  283 

Leeman  v.  Allen  5,  579 

v.  Day  115 

Leete  v.  Grcsham  59 

V.  Wilson  434 

Le  Fleming  v.  Simpson  554 

Legg  V.  Drake  25 

V.  McNeil  457 

Legrand  y.  Baker  527 

Lehman  v.  Brookljm  580 

Lelire  v.  ISIurry  29 

V.  Sumpter  571 

Leigh  V.  Hodges  58 

Leighton  v.  Sargent    200,  242,  386 

Leith  V.  Pope  584 

Lemoir  v.  South  707 

Lent  V.  Jones  55G 

Leonard  v.  Roiran  105 

V.  Smith  258,  419 

V.  Shuler  517 

Leschie  v.  Territory  494 

Lcsee  v.  Park  519 

Lessene  «.  Grant  577 

Lester  v.  Barnett  568 

V.  Goode  245,  510 

Letgoe  v.  Pitt  487 

Lctton  V.  Young  364,  581 

Levering  v.  Langley  90 

Levey  v.  Fargo  23 

Levi  V.  Milne  124,  574 

Levitsky  v.  Johnson  504 

Lewis  V.  Bank  82 

V.  Blake  450 

t-.  Block  572 

V.  Harris  345 

V.  Hawley  405 

V.  Hazel  755 

V.  Peak  490 

«.  Read  449 

V,  State  194,  379 

V.  Stephenson  557 

V.  Trussler  506 

Licet  V.  State  ^88 

Lidgett  V.  Perrin  327 

Likes  V.  Baer  363,  366 

Lile  V.  State  101 

Lincoln  v.  People  481 

V.  Wright  284 

Lindsay  v.  Lee  523 

V.  Wayland  402 


TABLE   OF   CASES   CITED. 


li 


Line  v.  Oregon 
Linn  v.  Wright 
Linnard  v.  Crossland 
Liuscott  V.  Trask 
Lipscomb  v.  Winson 
Lisbon  v.  Batli 
Lishcr  v.  Pannellee 
Lisle  V.  State 
List  V.  Kortpeter 
Lister  v.  Bolicr 

V.  IMundell 
Litclifield  V.  Loudouderr}^ 
Little  V.  Collett 

V.  Birdwell 

«.  Richards 

V.  Morris 

V.  Price 
Live  V.  Oregon 
Livingston  v.  Livingston 
Lloyd  V.  Newell 
t\  Ogelby 
Lochraue  v.  Solomon 
Lockard  v.  Lockard 
Lockart  v.  Luker 
Lockhart  v.  Mackie 
Loehner  v.  Home 
Loew  V.  Stocker 
Loftin  V.  Horngay 
Logan  v.  Steele 
Lombard  v.  Clieever 
Long  V.  Hopkins 

V.  Lewis 

V.  Overton 
Longacre  v.  State 
Lonsdale  v.  Brown 
Loomis  V.  Lane 
Looper  v.  Bell 
Lopez  «.  De  Tastet 
Lord  V.  Abbott 
V.  Ostrander 
V.  State 
V.  Veazie 
Lothrop  V.  Wright 

V.  Wrightman 
Lott  V.  Macon 
Louderback  v.  Boyd 
Love  V.  Jarret 

V.  Mikals 
Lovejoy  v.  Irelan 
Loveland  v.  Burton 
Lovett  V.  Longmire 

V.  Pell 

V.  Salem 
Levingworth  v.  Fox 
Loviston  V.  Junction 
Low  V.  People 
Lowe  V.  Commonwealth 


PAGE 

PAGE 

500 

Lowell  V.  Bean 

480 

380 

Lowenberg  v.  People 

181 

540 

Lower  v.  Clement 

317 

390 

Lowrey  D.^Brown 

136 

607 

V.  Stewart 

46 

474 

Lowry  v.  Orr 

458 

530 

Lubeck  v.  Bullock 

450 

83 

Lucas  V.  Bank 

608 

406 

V.  Daniels 

311 

510 

v.  Lucas 

125 

508 

V.  Waller 

602 

131,  415 

Luckett  r.  White 

593 

04G 

Lucy  V.  Buudy 

561 

248 

Ludlow's  V.  Park 

427 

217 

Ludlum  V.  Fourth 

778 

634 

Lum  V.  Price 

735 

589 

Lunday  v.  Thomas 

46 

555 

Lusk  V.  Miles 

143 

628 

Luster  v.  State 

208 

470 

Lutkins  «.  Zabriskie 

640 

76 

Lyford  v.  Thurson 

427 

296 

Lj^le  u.  Rollins 

444 

590 

Lyman  v.  Arms 

637 

340 

V.  Burlington 

694 

123 

Lynch,  v.  Horry 

190 

271 

Lynd  v.  Benjamin 

766 

142 

Lynes  y.  State 

54 

748 

Lyou  V.  Ely 

93 

626 

I".  Tevis 

755 

98 

507,  569 

444 

M. 

391 

134 

Mackemer  «.  Benner 

645 

218 

Mackay  v.  N.  Y. 

489 

620 

Macker  v.  Thomas 

666 

83 

Macon  v.  Davis 

457 

70 

V.  Parker 

614 

235 

V.  AVinn 

564 

713 

Macron  v.  Hull 

483 

316 

Macular  v.  Wall 

416 

661 

Macy  V.  De  Wolf 

519 

55 

Madden  v.  Porterfield 

376 

27 

V.  Shapard 

514 

218,  219 

V.  State 

54,  199 

702 

Magee  v.  Badger 

273 

533 

V.  Cutter 

688 

714 

V.  Doe 

130 

747 

V.  Osborn 

333 

736 

Magill  V.  Lyman 

405 

616 

IVIagness  ».  Stewart 

190 

641 : 

Maguire  v.  State 

165 

360 

Mahon  i\  Johnston 

445 

461  ! 

Jlain  V.  McCarty 

385 

318 

Elaine  v.  Call 

77 

379 

V.  Hunter 

733 

710 

V.  State 

456 

lii 


TABLE 


Malin  V.  !Malin 
]\Iiillory  ('.  Norton 
V.  Porkiiis 
Malone  v.  Ilardesly 
ISIaltock  V.  King 
^laltus  V.  Shields' 
Jlauhattan  v.  Osgood 
Mnnier  v.  ^Meyers 
Manion  v.  State 
Manix  v.  IVIalonoy        IGl, 

V.  ^Malory 
Manly  v.  Culver 
Maun  V.  Manning 
V.  State 
r.  AYliitbeck 
Manning  v.  Dove 
V.  Hays 
Mansfield  v.  Wheeler 
lyianscll  V.  Queen 
jMaple  V.  Burnside 
March  v.  Howell 

V.  Portsmouth 
V.  Thomas 
Marchman  v.  Todd 
Marcly  v.  Shults 
]\Iarcus  V.  State 
Marine  v.  Hodgson 
Marion  v.  Lomax 
jSIariol  v.  Givons 
Markham  v.  Middleton 
Marlborough  v.  Sisson 
jNIarmaduke  v.  jMc^Iasters 
INIaroney  v.  State 
Marquand  v.  Webb 
Marr  v.  Johnson 

V.  Marr 
Marrow  v.  Hull 
Marsh  v.  Edgcrton 
t\  Haywood 
V.  Wol)bcr 
Marshall  v.  Flinn 
V.  Fislier 
V.  Lester 
V.  ]\Iorris         40, 
V.  Wells 
V.  Union 
MarslialPs 
Marsham  •«.  Bullcr 
Martin  v.  ('lark 
V.  Crow 
V.  Hays 
V.  Herdesty 
V.  Higgans 
V.  Latimer 
V.  Mitchell 
V.  Morelock 
V.  McGuire 


^E    OF   CASES    CITED. 

paqeI 

PAGE 

1^7  i 

Martin  v.  Nix 

69  7 

G14 

V.  Orndorff 

229 

434 

V.  People 

98, 

296 

703 

V.  Pearman 

41 

739 

V.  State 

147, 

194 

321 

V.  Withington 

458 

108 

^rartin's 

711 

728 

250 

^lartindale  r.  Brown 

713 

744 

i\Iartyn  v.  Podger 

547 

248 

515 

Marvin  v.  Wilkins 

7G8 

500, 

511 

]\Iary  v.  Mcintosh 

384 

401 

]\Iaryland  r.  Porter 

2G9, 

387 

473 

]\Iask  V.  State 

383 

517 

Mason  v.  Bascom 

523 

62 

V.  Jones 

269 

349 

V.  Palmcrton 

38 

723 

V.  Peck 

664 

42 

481 

V.  Russell 

243 

1G8 

V.  AVestmoreland 

695 

352 

V.  Williams 

353 

G78 

^Lasscj^  V.  Tingle 

311 

189, 

257 

blasters  v.  Barnwell 

525 

689 

V.  Warren 

289 

58 

IMaston  v.  Fanning 

42 

45 

JIatser  v.  Brown 

728 

149 

Mathews  v.  West 

584 

589 

]\Iathis  V.  Mat  his 

468 

37 

jMatthews  v.  Ilorlbeck 

20 

610 

Mattox  V.  Hart 

445 

575 

V.  Stearns 

395 

382 

jVIauricet  v.  Brecknock 

573 

181 

jMaxam  v.  Wood 

722 

447 

^laxwell  V.  Williams 

745 

414 

May  V.  Hardin 

716 

153 

V.  Hanson 

394 

326 

V.  Mil. 

160 

66 

^Faj-bee  v.  Fisk 

364 

589 

jNlayberry  v.  Kelly 

388 

7G4 

Mayer  v.  IMcLure 

109 

7 

V.  Wiltberger 

80 

414 

378 

,  442 

Mayes  v.  Deavcr 

516 

43 

V.  Parish 

262 

733 

;Mayhew  v.  Loper 

21 

28G 

,  412 

Maynard  v.  Fellows 

217 

,  256 

391 

•».  lloskins 

761 

498 

,  49i) 

V.  Hunt 

557 

GSO 

V.  Penninian 

645 

573 

Mayor  v.  Goctchins 

179 

,  285 

539 

V.  Shaw 

643 

632 

V.  State 

179 

405 

Mays  V.  Hogau 

385 

89 

V.  Lewis 

144 

38 

V.  Williams 

369 

755 

Maysou  v.  Eddington 

450 

180 

V.  Sheppard 

138 

,  583 

203 

,  240 

Maysville  v.  Punuett 

714 

395 

McAfee  v.  State 

495 

TABLE   OF   CASES   CITED. 


liii 


PAGE 

IMcAlTerty  v.  Hale  69 

McAlexandor  v.  Wright  629 

McAlpin  V.  Finch  698 

McAllister  v.  Burrill  392 

V.  Barry  543 

V.  j\[cDo\v  393 

]\rcAnley  v.  Lockort  534 

McBride  v.  Whitehead  448 

McCaleh  v.  Smith  388 

McCall  V.  Brocl<  40 

V.  Davis  352 

V.  Seevers  4"),  61 

McCauii  V.  Taylor  613 

V.  Sloau  12 

r.  State  203 

l^IcCargo  V.  Chapman  624 

McCarter's  232 

McCartney  v.  McMullen  294 

V.  Shepard  92 

McCarty  v.  Bauer  358 

V.  McCarty  159,  204 

V.  Tremout  567 

McCary  v.  Mahe  728 

McComas  v.  State  37 

McCombs  V.  Chandler        102,  244, 

516 

McConnell  v.  Caldwell  695 

V.  Hampton  579 

V.  Micheltree  741 

V.  Swailes  736 

^IcCool  V.  Galena  455 

McCorkle  v.  State  719 

McCoy  V.  Jones  88 

V.  Martin  445 

V.  State  42,  295 

1).  Thompson  757 

lyicDaniel  v.  Armill  139 

v.  Crosby  254 

V.  Griuer  514 

V.  Parks  447 

V.  JIarygold  140 

V.  Walker  98,  365 

McDermott  v.  Barnum  350 

V.  United  States       543 

McDonald  v.  Bear  435 

V.  Falvey  764 

V.  Trafton  61 

v.  Maudlin  450 

McDonongh  v.  State  647 

McDougai  V.  Bellamy  296 

V.  Shirley  42 

V.  Dawson  273,  335 

jSIcDougald  V.  Smith  48 

V.  Rutherford  301 

McDowell  V.  Preston  482 

ISlcEndree  v.  IMcEndee  749 

McEutire  v.  McEldutT  751 


PAGE 

i\IcElrath  v.  State  64 

McEvoy  V.  McEvoy  484 

Mc  E win -y.  State  392 

McFadden  v.  Commonwealth   156. 

195,  390,  392 

V.  Otis  641 

McFarland  v.  Clark  544 

V.  Rogers  613 

V.  Wotrord  283 

McGarrity  v.  Byington  414 

McGatrick  v.  Mason  449 

McGavoch  v.  Woodlief  646 

McGehee  v.  Shafcr  84,  563 

McGill  V.  Monette  434 

McGlaughlin  v.  O'Rourke  734 

McGreal  v.  Wilson  296,  565 

McGregor  v.  Armill     139,  2G0,  369 

V.  Christie  13 

V.  McGregor  713 

McGuffie  V.  State          173,  247,  314 

McGuire  v.  State  192,  305 

Mcllvaine  v.  AVilkins  208 

Mclniffe  v.  Wheelock  704 

Mclntyre  v.  Crawford  449 

V.  Kline  296 

?j.  New  York  581 

V.  People  239 

V.  Young  505,  515 

Mclnvoy  v.  Dyer  440 

Mc.Iiltou  V.  Love  593 

McKay  v.  Freible  631 

«.  Larr  433 

V.  Leonard  40 

•B.  Thorington  84,  60 

McKean  v.  Paschal  149 

McKensie  v.  Pitner  697 

McKenzie  v.  McCall  629 

McKim  V.  Mason  746 

McKinley  v.  McCalla  751 

McKinney  v.  Carroll  666 

«.  Hartman  311 

V.  Springer  38 

V.  Waite  423 

V.  Western  625 

McKickham  v.  McBean  413 

McKitrick  v.  Peter  732 

McKnight  v.  Ratchff  305 

IMcLaue  v.  State  459 

McLain  v.  State  230 

V.  Lawson  493 

McLaren  v.  Birdsong  190 

V.  Hall  295 

McLaughlin  v.  O'Dowd  11 

IMcLaurin  v.  Parker  595 

I^IcLellan  v.  Crofton  87 

McLure  v.  Hart  445 

McMauagil  v.  Ross  21 


liv 


TABLE   OF   CASES   CITED. 


PAGE 

PAGE 

McManus  v.  Humes 

7G3 

[Merest  v.  Harvey 

584 

IMcMastcrs  v.  Blair 

07.-) 

^Merick  «.  Hemphill 

244 

jSIcMickon  v.  Com. 

648 

Merriam  v.  Cunningham 

348 

McMillan  v.  Graiiam 

G42 

644 

V.  Mitchell 

412 

V.  ]McCoy 

449 

Merrill  v.  Nary 

223 

V.  IJicliarda 

745 

V.  Tamany 

750 

McMullon  V.  Mayo 

48 

«.  Shattuck 

517 

Mciyiurty  v.  Glasscock 

715 

V.  Suflblk 

670 

Mc^Iuun  V.  Wbclan 

364 

Merritt  v.  Given 

301 

JIcNab  V.  Lockhart 

225 

^Merryman  i\  Ryan 

498 

McNair  v.  IMcComber 

13 

Metcalf  V.  Fonts 

627 

V.  IMcLennon 

39 

V.  Mattison 

654 

V.  SoiUb  Carolina 

445 

]\Ietcairs 

212 

INLcNamara  v.  Fisher 

662 

]\Ietliodist  V.  Maj'or 

593 

McNealy  v.  Stroud 

546 

Metz  V.  Eddy 

730 

McXeiir».  Arnold 

305 

Meyer  v.  Foster 

240 

McNeisli  V.  Ste-\vart 

548 

V.  Second 

354 

McNorton  v.  Akcrs 

450 

Michie  v.  Michie 

743 

McNutt  V.  Lancaster 

32 

]\Iichigan  v.  Bivens 

128 

McPhail  'V.  Moscly 

602 

IVIiddleton  v.  Gould 

632 

McPhcrson  v.  State     314, 

344, 

362 

Middletown  v.  Adams 

517 

McQuade  v.  O'Neil 

740 

V.  Ames 

190 

McQueen  v.  Bostwick 

471 

Middlesex  v.  IMcGregor 

431 

V.  Fulgham 

445 

Mills  V.  Douglas 

295 

V.  Stewart 

538 

V.  Rose 

165 

McRae  v.  Davis 

770 

Millard  v.  Singer 

496 

V.  Lilly 

568 

Millandon  v.  First 

5l5 

V.  Woods 

606 

Miller  w.  Baker 

74,  88 

3IcReynolds  v.  Lougenberger 

345 

V.  Bryan 

264 

McTavish  v.  Carrol 

806, 

431 

V.  Chaffee 

640 

McVean  v.  Scott 

104, 

145 

V.  Hampton 

268 

McWillie  aj.  Perkins 

13,  23 

V.  Hall 

58 

Meade  v.  Smitb 

134, 

246 

V.  Hower 

126 

Meager  v.  Gagliardo 

101 

7).  Kogcr 

10 

Meakin  v.  Anderson    401, 

505, 

540 

V.  Ral'liir 

460 

Mealing  v.  Pace 

453 

V.  JVIaguire 

597,  604 

Means  v.  Means 

42, 

478 

V.  Mahon 

159 

Mears  v.  Garret  son 

670 

V.  INIiller 

21 

Mechanics  v.  Lynn 

594 

V.  Northern 

467 

V.  Nichols 

518 

V.  Shackleford    129 

183, 391 

Medford  v.  Harrell 

713 

V.  Schuyler 

17 

Meek  v.  Howard 

597, 

598 

V.  Steeu 

148 

v.  Spencer 

331 

V.  Stem 

95 

Meem  v.  Pucker 

589 

V.  Stewart 

282,  352 

Meese  v.  Lewis 

39 

V.  Talcott 

337 

Melcher  v.  Frendenberg 

713 

V.  Wilson 

84 

V.  Merryman 

425 

^lillerd  v.  Reeves 

640 

Melins  v.  Ilorne 

706 

Millctt  V.  Hayford 

24 

Mellcdge  v.  Boston 

289 

Milliken  v.  Tufts 

60 

Mellish  V.  Arnold 

160 

Mills  V.  Bagby 

668,  758 

Melvin  v.  Bnllard 

286 

V.  Com. 

684 

Memphis  v.  Banere 

28 

V.  Davis 

386 

V.  Bibb 

281 

295 

V.  Dunlap 

441 

Menely  v.  I\Ienely 

457 

V.  Howard 

669 

Merced  v.  Fremont 

779 

V.  Mayor 

399 

Mercer  v.  Sayre 

405 

Mill's 

230 

V.  State     158,  179, 

194 

197 

Milner  v.  State 

597 

TABLE   OF   CASES   CITED. 


Iv 


PAGE 

Milton  V.  Blackslicar  2G0,  500,  5G7, 

59G 

Mims  V.  Lockett  351,  3G1 

V.  Stimlevant  56 

Mininger  v.  Knox  405 

Minklcr  v.  Minkler  513 

Minor  v.  Stone  G08 

v.  Tillotson  632 

Mirick  v.  Hemphill  42 

Mississijipi  v.  Cross  445 

Missouri  v.  Hannibal  308 

Mitcliell  V.  Bass  494 

V.  Churchman  260 

V.  Folley  450 

V.  Hockctt  180 

V.  INIatson  462 

V.  Parks  240 

v.  Printup  148 

V.  Rome  412 

V.  State  156 

V.  Stewart  593 

V.  Western  361 

V.  Zimmerman  264 

Mitchum  v.  State  179 

Mix  V.  Madison                  .  387 

Moberly  v.  Devar  G7 

Motfat  V.  Couklin  307 

Moffett  V.  Bowman  249 

Moffit  V.  Cressler  260 

Moies  V.  Eddy  284 

Money  v.  Jordan  609 

Monk  V.  Guild  632 

Monosiet  «.  Post  654 

Monro  v.  Bradfield  479 

Monroe  v.  Brady  626,  722 

V.  Delavan  600 

V.  Georgia  IGG 

«.  State  180,  459 

Monson  v.  Palmer  434 

IMonteeth  v.  Caldwell  88 

Montgomery  v.  Erwin  301 

V.  Evans  262 

V.  Gilmer  375 

1).  Givhan  728 

V.  Leavenworth     746 

Moody  V.  Harper  534 

V.  Hinkley  389 

V.  Keener  143 

V.  Vredland  626 

Moore  v.  Barclay  614 

V.  Foster  449 

V.  Gamble         589,  607,  609 

V.  Harris  620 

V.  Holland  325 

V.  Lea  393 

V.  Lee  436 

V.  Lyman  744,  745 


PAGE 

Moore  v.  Murdock  450 

v.  ]\Ieacham  299 

V.  Philadelphia  493 

V.  Rittenhouse  735 

V.  Shaw  390 

V.  Schooner  714 

V.  Ulm  35,  499 

V.  Wart  740 

]\[oores  V.  Parlcer  652 

Moore's  v.  Shcphard  588 

jNIoran  v.  Dawes  586 

V.  Green  34 

IMorehead  v.  Brown  50,  137 

]\Iorehouse  v.  Northrop  480 

Morein  v.  Solomons  538 

Moreland  v.  McDcrmott  278 

Morford  v.  Woodworth  42 

Morgan  v.  Boyd  778 

V.  Coachman  97 

V.  Greer  646 

D.  Houston  498 

V.  Jones  424 

V.  Ryerson  456 

V.  Stevenson  180 

V.  Winston  89,  558 

Morice  v.  Prince  126 

Morris  v.  Barnes's  447 

V.  Bartlett  594 

V.  Brickley  298,  363 

V.  Henderson  95 

V.  Litchfield  357 

V.  jMorris  273 

V.  Piatt  260,  273,  379 

V.  Seward  475 

V.  State  244,  373 

V.  Stokes  457 

V.  Thompson  570 

Morrison  v.  Hammond's  737 

9).  Hays  88 

V.  McKinnon  188,  473 

V.  Muspratt  377 

V.  McKirnon  48 

V.  Whiteside  708 

V.  Underwood  644 

Morrow  v.  Hatfield  527 

Morse  v.  Gilman  297 

V.  Weymouth  826 

Morton  v.  Edwin  743 

«.  Fairbanks  351 

V.  Lawson  59 

V.  Waring  344 

Mosby  1).  Haskins  594 

Moses  V.  State  189,  408 

Moss  V.  Priest  130 

]\Iossclman  v.  Caen  104,  734 

IVlossop  V.  Great  HO 

Mower  v.  Warner  514 


Ivi 


TABLE    OF   CASES    CITED. 


IMowry  r.  St.irbuck 
ISIoyc  V.  llerndon 
Moyer  v.  Gorman  ton 
V.  Wiltberger 
Mudge  V.  Pierce 
l^Iuldenor  v.  McDonongli 
IMuldrou  V.  Cakhvell 
IMullcn  V.  ^Maj-s 
Mullins  r.  People 
Mum  V.  Perkins 
Mumford  v.  Smith 

•2>.  Thomas 
Munch  v.  WilUamson 
Mundy  v.  Bryan 
]\ruut()rd  t'.  Sjirague 
Munich  v.  Municli 
JIunu  V.  Gardner 
V.  3Iatlock 
V.  Worrall 
INIunro  v.  Potter 
]\Iuusliower  v.  Patton 
Munson's 

]\Iurdock  V.  Sumner 
JMurray  v.  Hudson 

V.  Judah 
]\Iurphy  V.  Com. 

■y.  Justice 
V.  People 
V.  Spcnce 
».  State 
V.  Williams 
]\IusgroTe  V.  Chambers 
]\lussina  v.  jMoore 
Myer  v.  Avery 
Myers  v.  Brf)wnell 
V.  ]\I('Bride 
V.  iMalconi 
V.  Walker 
V.  York 
Myrick  v.  Hicks 

N. 

Nabors  v.  State 

Isagle  V.  Homer 

Nalle  V.  Gates 

Nance  v.  Hicks 

Nane  v.  Simpson 

Nash  V.  Gilkeson 
V.  Horton, 
V.  Morton 
v.  Wctmore 

Nave  V.  Horton 

Nashua  v.   Stimpson 

Neall  V.  Hill 

Neal  V.  Lewis 


PAGE 

1G9,  ;w7 
384 
642 
445 
394 
719 
295 
48 
692 
80 
444 
435 
111 
453 
611 
646 
445 
599 
496,  538 
23,  40,  261 
168 
199 
247, 248 
581 
275 
86 
47 
261,  269 
113 
434 
721 
598 
533 
418 
505,  515 
341 
338 
273 
318 
43 


PAGE 

Ncave  v.  Milns  551,  554 

Ned  ®.  State  211 

Neel  V.  Hughes  376 

Neil  V.  Abel  223 

Neill  V.  Hill  716 

Nelson  v.  Andrews  654 

i\  Armstrong  600,  654 

V.  Emerson  138 

V.  Leland  731 

V.  Pockwell  599 

V.  State  315 

Neves  d.  Scott  666 

Newberg  i\  Farmer  42 

New  Brunswick  v.  Tiers  382 

Newby  v.  Territory  13 

Newcomb  v.  State  362,  500,  642 


147 
337 

95 
695 
543 
409 
311 
291 

76 
311 
016 
716 
581 


New  England  v.  AVetmore 
Newell  V.  Ayer 
V.  Rusk 
New  Haven  v.  iNIitchell 
Newlin  v.  Newlin 
Newman  v.  Dick 
V.  Meek 
New  Orleans  v.  Allbritton 
V.  Gaines 
V.  McBride 
Newsom  v.  Huey 
Newton  v.  Allis 
V.  Booth 
V.  Kerr 
1).  Newton 
New  York  v.  Graham 
V.  Green 
V.  North 
■2J.  Waldeu 
Nichols  V.  Bank 

V.  Bridgeport 
■B.  Frotliingham 
V.  Goldsmith 
V.  Sixth 
V.  Turney 
Nickle  V.  Williamson 
Niles  V.  Brackett 
Nill  v.  Comparet 
Nims  V.  Bigelow 
Nininger  v.  Knox 
Nisbet  V.  Law  son 
Nixon  V.  Bullock 
Noble  V.  Adams 
Nolen  V.  State 
Noltou  V.  Moses 
Nooney  v.  ]\Iahoney 
Nordyke  v.  Shearon 
Norfleet  v.  State 
Norman  v.  Beaumont 
Norris  v.  Badger 
V.  Freeman 


282 
51 
451 
94 
650 
636 
605 
364 
643 
567 
434,  440 
135 
159 
141 
273 
450 
704 
714,  718 
274,  280 
32 
643 
322 
297 
41 
91 
472 
125 
735 
240 
240,  420 
755 
143,  190,  240 
69 
175,  214,  242 
408 
523 
393 
175,  183 
170 
423 
467 


656,  708, 


TABLE   OF   CASES   CITED. 


Ivii 


Norris  v.  Milner 
V.  Tyler 
Nortliern  v.  Bi^forcl 

V.  Stale 
Norvcn  V.  Oury 
Noycs  «.  Shoplierd 
Klines  V.  Carter 
Nutter  V.  Kickctts 
Kutlino;  i\  Herbert 
Kutwell  V.  Tongue  a 
Nye  V.  jNIaxwell 

O. 


133, 


425, 


542 


Oakes  «.  School 

-0.  Thornton 
Oakeley  v.  Ooddeen 
V.  Sears 
1}.  Young 
Oaldy  -0.  Aspinwall 
O'Barr  v.  Alexander 
O'Brien  v.  Hilburn 
V.  Liddell 
O' Byrne  v.  State 
O'Callaglian  v.  Booth 
O'Connor  v.  Bradshaw 

V.  State 
Odd  Fellows  V.  Masser 
Odell  V.  Sargent 
Oelrichs  v.  Ford 
Offt  V.  Vick 
Offut's®.  Bradford 

Ogle  V.  State 
0°Ha"-au  v.  Chnesmith 
O'Hara  v.  Pennsylvania 

V.  Richardson 
Ohio  V.  LaAvrence 
V.  jSIcCutchin 
V.  Schiebe 
Oldham  «.  Staker 
Olin  V.  Hungerford 
dinger  v.  Shepherd 
Oliver  v.  Chapman 
V.  Pace 
V.  Phelps 
V.  Springfield 
Olney  «.  Brown 

V.  Chadsey 
Olscott  V.  State 
Onions  v.  Naish 
Ophir  V.  Carpenter 
Ordway  v.  Haynes 
Organ  v.  State 
Ormsby  v.  Ihmsen 
^)  Johnson 
Orne  v.  Cook 


PAGE 
PAGE  I  457 

lS:S"oU?Co»,non«aUyn.  C. 

160;  „     .  '         --' 

358   Osceola  v.  Kost 
299  1  Osborne  v.  Marciuand 
5(5  ■?;.  Scott 

449    Osgood  V.  Green 
9n  ^m\  v.  McConnell 

286  1,.  Thurston 

421    Oswald  D.  Kennedy 
190  240  -».  Tyler 

'  Ottawa  fl.  Graham 

Overbee's 
Overley  v.  Paine 
Overman  v.  Cobb 
772    Overt  v.  Stewart 
432   Owen  v.  Chandler 
■111  ^■-  Owen 

Aoo    W2  «.Shelhamer 

cm\  t^.Tankersly 

oo  V.  ^Varburton 

492,  497  1  Owens  v.  Kanstead 
'  138 


739. 
6G0 


321 
485 
389 
733 
149 
731 
572 
555 
290 
230 
40 
24 
733 
296 
258 
40 
609 


243,  248 
602 


I  Packard  v.  Bates 

V.  ISIatthews 
^.  New  Bedford 
v.  United  States 
Packer  ».  Heat  on 
,.^^1  V.  Packer 

183    Paddleford  v.  Bancroft 
26    Paddock  15.  Palmer 

624,625  J-lf'"''''^ 

344   Page  v.  Carter 

702 
721 


444 

720 

611 

93 

254,  385 
13 


V.  Contocook 
V.  Dauvers 
V.  Horaans 
V.  Hnrd 
v.  Kinsman 
V.  Pattee 
V.  Smith 
■y.  Winston 
34 1  Paiges.  O'Neal 
158  I  Paine  v.  Cowdin 
Palmer  t;.  Bice 

:-.Ssk"  496,  «3,  539.  1;85 

V.  Hvde 
V.  Pi'nkham 
V.  Poppleston 
Panitt  V.  Stuart 


21 
45,  456 
662 
189 
447 
492 
230 
637 
226 
273 


569 

653 

412 

248 

551 

318 

620 

607 

482 

449 

193 
164 
429 
572 
256 
377 
33 
610 
159 
735 
638 
70 


Pannellv.  State 
Park  V.  Harrison 
Parker  v.  Baker 


478 
442 
547 
751 
400 


157 
739 


ivui 


TABLE   OF    CASES   OITED. 


PAGE 

Parker  v.  Chambers  102 

r.  Copelaud  C22 

V.  FhiiS'j;  07 

f.  Foster  40,419 

V.  Uan\y  502,  519,  520 

V.  Ilendric  446 

V.  Ilornc  580 

V.  Jones  770 

V.  Jolnison  309,  457 

V.  Kelly  012 

V.  Lenian  138 

V.  Lewis  508 

v.  Morton  COO 

V.  Smith  480 

V.  Thornton  173 

V.  Walden  472 

V.  Willis  703 

Parker's  208 

Parks  V.  Boston  21 

V.  State  87,  084 

Parlby  v.  Parlby  402 

Parmelee  v.  Smith  134 

Parmenter  v.  Parmenter  023 

Parr  v.  Burbeck  575 

■».  Gibbons  470 

V.  Seames  160,  248 

Parris  v.  State  380 

Parrott  v.  Underwood  8 

Parsons  v.  Co]iclaud  050 

V.  Hufl'  233,  237,  309 

V.  ^IcKibbin  01 

Parshall  v.  Klinch  525 

Partridge  v.  Gill)ert  285 

V.  Patterson  322 

V.  San  Francisco  22 

Paschal  v.  Cushmau  130 

Pasley  v.  Kemp  381 

Patchin  v.  Wegman  552 

Pate  V.  Spotts  40 

Patten  v.  Newell  204 

V.  People  034 

Patterson  v.  Ball  387 

V.  Burnett  104 

v.  Colebrook  280 

V.  Cook  134 

V.  Matthews  105 

■y.  iVFcClanahan  61 

V.  Patterson  6  24 

V.  People  200 

Pattison  v.  Shaw  720 

V.  Wilson  518 

Patten  V.  Gregory  46,  185 

V.  Hamilton  572 

Patty  V.  Winchester  761 

Paukett  V.  Livermore  588 

Paul  V.  Hussey  641 

V.  Kuby  359 


PAGE 

Paul  V.  Perez  485 

V.  Williams  100 

Paulding  v.  AVatson  613 

Pawley  v.  IMcGimptey  547 

Paxson  V.  Bailey  317,  340 

Paj^ne  v.  Collier  623 

V.  Jacobs  453 

V.  Niles  661 

V.  Pacilic  563 

Paynter  v.  Evans  597 

Payson  v.  INIacomber  300 

Peabody  t\  Bueutillo  600,  697 

Pcacham  v.  Carter  218 

Pearce  v.  Burns  131 

v.  Chastain  590,  596 

V.  Jordan  124 

V.  Olney  593 

V.  Swan  722 

V.  Vaughn  457 

V.  Winter  607 

Pearsall  v.  iSIcCartney  488 

Pearson  v.  Chapman  338 

V.  Fiske  435 

?;"Grice  28 

Pease  v.  Whitney  103 

Peck  V.  Boggess  98 

V.  Hensley  24 

V.  State  114 

Peebles  v.  Rand  82 

Peeples  v.  Smith  46 

Pegg  V.  AVarford  89,  90 

Peiham  v.  Page  30 

Pellatrcau  v.  Moore  108 

Penhallow  v.  Doane  734 

Penrice  v.  Wallis  734 

Pensacola  v.  Nash  123 

Pennsj^lvania  v.  Brady  12 

People  V.  Bacon  776 

V.  Baker  774 

V.  Browne  98 

V.  Circuit  775 

V.  Coffman  84 

V.  Frank  90 

V.  Herkimer  108 

V.  Iloushcll  29 

V.  Inspector  777 

V.  Judges  776,  778 

V.  Pearson  75 

V.  Scott  42 

Perrott  v.  Shearer  88 

Perry  v.  Robinson  81 

V.  Ward  770,  771,  773 

Persch  v.  Quiggle  737 

Persons  v.  Centre  731 

Petty  V.  Scott  35 

Pharo  V.  Johnson  314 

Phelps  V.  Peabody  591 


TABLE   OF   CASES   CITED. 


Pbclps  15.  Stewart 

«.  Tilton 
Pl,iladelpWai.na^-         295, 

^.  llogan 

^.  Howard      ^^*i 

V.  Miller 

«.  Stlmpson 
Philbrick  V.  Ilolloway 
Pliilbrook  V.  Burgess 
Philips  I'.  Fowler 
t).  Wheeler 

Phillips  V.  Barr 
■«.  Behn 
^,.  Friend 

^j.  Hill 
«.  Kingfield 
-y.  Russell  '^~' 

■y.  State 
V.  Stewart 
Phillipsburg  V.  Fulmer 
Phoenix  V.  Fletcher 
Pickens  V.  Yarhorough 
Pickerell  i).  Carson 
Pickering  v.  Dowson 

^.Mizner 
Pickwood  V.  Wright 
Pierce  «.  Adams 
V.  Flinn 
■».  Myrick 
t).  Negro 
-y.  Eandoli^li 
«.  Sheldon 
-y.  State 
Pierson«.Burney 

1}.  David 
Pike  V.  Evans 
«.  State 
Pilcher  V.  Hart 
Pilot  fl.  Chapman 
pines  V.  State 
Pinkston  r.  Greene 
Pinneo  ..  Lackawanna 
Piper  V.  Goodwin 
V.  Lodge 
t).  White 
^.  AVillard 
Piquet ».  Cormick 
Plank  V.  Bruce 

^  Hoffman 
Planter's  i).Kichardson 

ti.  Willis 
Plate  V.  Carolina 
Piatt  V.  Munroe 
Platte -y.HcFarland 

Pleak  V.  Chambers 
Pleasant  v.  State 


Pleasants  v.  Head 
1).  Scott 
Plcvdell  15.  Dorchester    Ob, 
'  Plumlcigh  V.  Dawson 
1  Poagc  V.  Bell 
'  -a.  Koe 

I  Pochin  V.  Pawley 
Poe  V.  Decker 
!  Poguc  r.  Joyner 
\  V.  Shotwell 

I  V.  State 

1  Poler  V.  New  York 
1  Police  U.Ray 
I  Polk  v.  State 
;   Pollen  v.  Le  Roy 
;    PoUey  V-  Lennox 
PoUevs  V.  Ocean 
pollock  V.  Gilbert 
Pomeroy  «•  Bank 
1  V.  Columbian 

Ponder  v.  Cox 
Poole  fl.  Devers 
'  ».  State 

V.  Whitecomb 
1  Pope  V.  Dinsmore 
'  V.  Eakin 

i\  Latham 
V.  State 
1  Porter  v.  Cotney 

1).  Ferguson 
^^  Foley 
V.  Hanley 
V.  IMoflet 
v.  Padelford 
v.  Rummery 
V.  Seller 
V.  Schcrburn 
V.  State 
-y.  Vauglin 
!  Post «.  Broadman 
'  i^.  Wright 

1  Potter  V.  Chicago 
'  ^.  Dennison 

-y.  Hiscox 
v.  Hopkins 
V.  Padelford 
V.  Payne 
^>.  Thompson 
1  Powell  V.  Asten 
'  V.  Bigley 

t).  Central 
1).  Davis 
-».  Haley 
1  Powell  V.  Hannibal 
j  ^.  Jones 

„'  Jopling 
t-.  Cesser 


lix 


PAGE 
245 
295 
70,  585 
573 
G12 
G33 
66 
600 
445 
607 
17 
356 
110 
9 
327 
33 
413 
589 
10 
519 
598 
435,  438 
147 
566 
725 
616 
37 
201,  213 
140 
308 
658 
11 
603 
504 
666 
367 
83 
234,  504,  509 
767 
589 
550 
581 
808 
148 
43 
384 
386,487 
583 
43 
461 
713 
270 
1G5,  450 
933 
504 
720 
384 


Ix 


TABLE   OF   CASES    CITED. 


Powell  V.  Ross 

T.  Stewart 
V.  Watson 
Power  V.  Frick 
Powers  V.  Alien 
V.  Bridu;cs 
V.  Gillespie 
V.  Lillie 
V.  Presgroves 
V.  Wrig'ht 
Poyna  v.  Shotwell 
Pralus  V.  Pacific 
Prater  v.  Darby 
Prathcr  v.  Prather 
Pratt  V.  Wakey 
v.UnW 
V.  Kitterell 
Prattc 

Prentiss  v.  Danalier 
Presbury  v.  Commonwealth 
Prescott  V.  Johnson 
President  v.  Patchen 
Preston  v.  Ilarvey 
V.  Keys 
V.  Lei.ijliton 
V.  Walker 
Prettjnnan  v.  Waples 
Pre  wilt  v.  Perry 
Price  V.  Alexander 
V.  Brown 
V.  Evans 
V.  Ford 
V.  Fuqnlia 
i\  Johnson 
V.  Orange 
V.  Powell 
V.  Severn 
V.  Warren 
Prinim  v.  Haven 
Prince  v.  Shepherd 

V.  State 
Princeton  v.  Gulick 
Prior  )'.  Powers 
Pritchetl  ti.  Overman 
Pritchard  v.  Hennessey 

V.  Myers 
Probate  v.  Hall 
Proprs.  V.  Prescott 
Prosser  c.  Chapman 
Pruitt  V.  Cox 
Prussel  V.  Knowlea 
Pryor  v.  Coggin 
V.  Smyth 
Pngh  V.  Maer 
Pulkerson  v.  Bollinger 
Pmnphney  v.  Brown 
Purple  0.  llarton 


PAGE 

g;]8 

589,  590,  GOB 
605 
537 
98 
8,  104 
551 
C59 
186 
108 
468 
80 
658 
004 
561 
276 
718 
263 
112  i 
155  j 
44' 
14 
407,  423 
11,  301 
42,  272 
286 
742,  751 
589, 597 
385 
549 
42,  473 
534 
552 
613 
718 
34 
579 
213 
325 
54,  58,  412 
168 
59 
242 
287 
150 
43,  59 
391 
425 
721 
370 
152 
377,  378 
713 
594 
457 
713 
193 


Purple  V.  Clark 
Purinton  v.  Humphreys 
Purvis  V.  Coleman 
Putnam  v.  Bowkcr 
V.  Churchill 
V.  Crombie 
V.  Lamphier 
Pym  V.  Great 


Q. 

Queen  v.  Bcrtrand 
V.  Chorley 
V.  Hepburn 
V.  Leigh 
V.  Wilts 

Quin  •«.  Wright 

Quiuebaug  v.  Leavens 
V.  Tar})ox 

Quinn  v.  AVoodhouso 

C^uint  V.  Ophir 

Quinno  v.  Kenyon 


PAGE 

21 

199,  213 

357,  445 

311 

651 

76 

460 

71 


114 
117 
163 

117 
407 

298 

83 

169 

39 

42,  448 

8 


R. 

Rabe  v.  Wells  311,  345,  646 

liadcliffy.  Rhan  34 

Rafe  V.  State  109 

Ragland  v.  Wills  336 

Railroad  Co.  v.  Taffe  126 

V.  Washburn  3 

Raine  v.  Bank  749 

Rains  v.  Hood  81 

]{amadge  v.  Ryan  180 

Ramage  v.  Peterman  342 

Ramaley  r.  Leland  359 

Rambo  v.  Wyatt  127 

Ramsey  v.  Hamilton  79 

Rand  v.  Dodge  413 

Randall  v.  Doano  410 

V.  Parramore  59 

V.  Sellers  307 

Randolph  v.  Randolph  596 

V.  Roser  630 

r.  AVoodstock  418 

Randon  v.  Toby  98 

Rnuds  V.  Triiii>  487 

Raugular  v.  llnmmel  71 

Rank  v.  Shevey  189 

Rankin  v.  T5allanco  634 

V.  Harper  159 

V.  Thomas  868 

Ranney  v.  Higby  318 

Raphael  v.  Bank  158 


TABLE   OF   CASES   CITED. 


Kash  V.  Whitney 
Ratlibono  «.  t  ity      '^*-> 
V.  llalhbone 

Katcliff  V.  Hicks 
RiUliii'  «■  ^""'^y 
Rawkins  v.  Tucker 
■Rawson  v.  Curtis     _ 

fl.  McJuukins 

Ray  V.  Smith 

^,.  AYooters 
Raymond  v.  Bfirker 

i).  ?lo\vlana 
u.  Nye 
ti.  Williams 
Read  V.  Barker 
V.  Dews 
r.  Dickinson 
Readfield  v.  Shaver 
Reading  i'.  Com. 
Reasouer  v.  Brown 
Reaves  v.  Moody 
Reboul  V.  Chalker 
Receivers 
Reck  11.  Essex 
Rector  V.  Hudson 
Reddick  v.  State 
Reddiui?  v.  Bartram 
Redfield  v.  State 
Redman  v.  Gulnac 
Redshaw  v.  Brooks 
Redwav  v.  Sweeting 
Redwine  v.  Brown 
Reed  V.  Clarke 
V.  Davis 
V.  Deerfield 
V.  DeAYolf 
V.  Harrington 
V.  ]\Ioore 
V.  Reed 
r.  Staton 
Reel  V.  Reel 
Reeves  v.  Delaware 

V.  Royal 
Regina  v.  Caudwell 
V.  Chadwick 
V.  Clerk 
^).  Dayman 
t<.  Dunn 
-y.  Johnson 
V.  Law 
Re-'ina  v.  Parkinson 
°        V.  Paynter 
V.  Recorder 
V.  Russel 
V.  Staton 
Reid  V.  Kirk 
V.  Mason 


I  Reid  V.  Quigley 

V.  Reid 
I  Reims  v.  People 
Reinhart  v.  IMiHer 
1  Reitenhaugh  v.  Ludwick 
1  Remick  v.  Walton 
1  Remington  ».  Congdon 
Renauil  v.  Peck 
i  Renouil  v.  Harris 
Reuck  )v  ]McGregor 
I  Rex  V.  Burdett 
•D.  Cook 
^.  Courvoisier 
11.  Roberts 
r,3y  I  1).  Simons 

614   Reynard  v.  Brccknell 
702    Reynolds  v.  Boston 
149  D.  Cox 

ir-r  V.  Horine 

OKI    k^r\  v.  Magness 

Mr  l-R  r.  State 

'615  t^.  Tucker 

190    Rhea  v.  Riner 
164   Rhines  «.  Baird 
640    Rhoads  v.  Hoopes 
Rliodes  V.  Otis 

I'.  Sherrod 
I  Rice  V.  Almy 
?;.  Floyd 
11.  (;ashirie 
11.  HoUenbeck 
V.  Railroad 
V.  Rice 
ij.  Sims 
V.  State 
I  Rich  V.  Flanders 
V.  Hathaway 
V.  Jones 
01*  I  ^-  Penfield 

oqi !  Richards  y.  Allen    _ 
'  i;.Curlewi3 

1).  Griffin 
V.  iSTuckolls 
V.  Rose 
I).  Smith 
V.  Sperry 
u.  Symes 
i  Richardson  v.  Backus 
r.o2  -«•  Curtis 

i20    Richardson  «.  Farmer 
rZ-i  V.  Fonts 

^oo  V.  Murray 

^ipl  V.Roberts 

MA  V.Warren 

oio  V.  AVilliams 

307    Richmond  v.  Shippeu 


Ixi 

PAGE 
759 
297,  386 
313 
325 
149 
458 
44,  288 
50 
702,  703 
567 
218 
248 
226 
528 
502 
390 
24 
351 
74 
59 
743 
481 
443 
344,  351 
48 
138 
283 
97 
270 
708 


591, 


27'; 


65 
726 
598 
133 
564 
180 
219 
029 
391 
558 
706 
604 
82 
525 
573 
737 
147 
555,  588 
.516 
35,  393 
407 
367 
577 
50 
413 
600 
599 


Ixii 


TABLE   OF   CASES   CITED. 


PAGE  ' 

PAGE 

Riclimond  v.  Woodruff 

391 

Robinsons.  Brooks 

273, 

279 

Riclunoiuls  v.  "Wurdlaw 

112 

V.  liurton 

387 

Kickelts  i\  Peudlelou 

398 

V.  Corn 

509 

Kicks  V.  Slate 

40 

V.  Cook 

557 

Ridons  o.  Kidcus 

255 

V.  Exchange 

509 

Ridgoway  v.  Bank 

589 

V.  Fitchburg 

395, 

440 

Ridley  i\' Buchanan 

323 

V.  Green 

346 

Rigby  V.  Norwood 

320 

V.  Hudson 

704 

lligg  V.  Cook 

242 

V.  Keith 

413 

Riggins  V.  Brown          35, 

317,  234 

V.  Lakcy 

698 

Riggs  V.  3Ialtby 

134 

V.  ^lagarity 

001 

V.  State 

303 

V.  Martel 

03, 

504 

Rignoy  v.  llutcliina 

535 

V.  Kaynor 

737 

Riley  v.  Dickens 

333 

V.  Scott 

133 

V.  Emerson 

537,  558 

V.  State   58,  273, 

587, 

557 

«.  Monolian 

440 

V.  Supervisors 

690 

V.  Riley 

319 

V.  Tipton      480, 

040, 

658 

V.  State 

20G 

Robson  V.  Jones 

46 

V.  "Waugh 

640 

V.  Watts 

95 

Ringgold  V.  Barley 

747 

Rochell  V.  Phillips 

20 

Ripley  v.  IMorris 

030 

Rochester  v.  Roberts 

389, 

657 

Rising  V.  Conway 

38G 

Rockingham  v.  Claggett 

728 

Ritchie  v.  Holbrook 

203 

Rockwood  V.  Roundstone 

370 

Ritte  V.  Com. 

299 

Rodenbough  v.  Rosebury 

755 

Ritter  v.  Cnshman 

132 

Roddy  V.  Bacon 

693 

Rives  V.  Kuraler 

039 

liodgers  v.  Rodgers 

595 

Riviere  v.  McCormick 

291 

Rodriguez  v.  Comstock 

545 

Rixey  «.  Ward 

575 

Rodman  v.  Larue 

776 

Roach  V.  State 

493 

Roe  V.  Bank 

664 

V.  Wade 

053 

V.  Devys 

173 

Robb  V.  Ilalsey 

004 

V.  Smyth 

566 

Robbius  V.  Alton 

524,  520 

v.  Taylor 

285 

323 

V.  Appleby 

734 

Rogers  v.  Ackerman 

311 

V.  ]\lount 

598 

V.  Alexander 

070 

V.  Townsend 

576 

V.  Brooks 

273 

V.  Weudovcr 

243 

V.  Iluic 

99 

Roberts  v.  Austin 

392 

V.  Kennebec 

454 

455 

V.  Cantrell 

707 

V.  King 

451 

V.  Chan 

433 

V.  McCune 

357 

V.  Cooper 

075,  080 

V.  i\Iarshal 

24 

V.  Failis 

101 

V.  ^lurray 

487 

V.  Ilefl'ncr 

29,  09 

V.  West 

354 

V.  Holms 

541,  559 

Rohr  V.  Da  vies 

453 

V.  Hudson 

570 

Roland  v.  ]\Iiller 

133 

v.  Karr 

483 

Rolfe  V.  Rolfe 

532 

548 

V.  Landrum 

008 

Rollins  V.  Chester 

413 

V.  jNIuir 

504 

V.  Varney 

291 

V.  Robeson 

78 

Rollison  V.  Hope 

698 

,  099 

t\  Rockbottom 

151 

Rolston  V.  Langdon 

382 

,  383 

t\  State 

454 

Romaine  v.  Kinshimer 

090 

Roberts  v.  Townsend 

■   570 

1-iomaine  v.  State 

85 

,  179 

v.  Ward 

35 

Romcyn  v.  Caplia 

711 

Robeson  v.  Brown 

148 

Roome  v.  Phillips 

713 

Robinoe  v.  Doe 

498,  497 

Pioquest  V.  Boutin 

400 

Robins  r.  Fowler 

491,  500 

Root  V.  King 

581 

Robinson  v.  Adkins 

310 

V.  Sherwood 

293 

V.  Baillead 

713 

Roots  V.  Brown 

103 

TABLE    OF   CASES   CITED. 


Ixiii 


PAGE 

S. 

Roots  1}.  Tyncr             201, 

283, 

383 

PAGE 

Rose  V.  Choteau 

707 

Sackett  v.  Spencer 

363 

Rosoubaum  v.  State 

311 

Sadler  v.  Sadler 

254 

Rosciicnvnts  v.  State 

542 

Safret  v.  Hartman 

341 

Ross  V.  Ellsworth 

G88 

St.  Louis  V.  ]\Iuri)hy 

535 

V.  Hamilton 

725 

Salem  v.  Hays 

393 

V.  Hayue 

630 

Salmons  v.  Webb 

463 

V.  Innis 

567 

Sam  V.  State 

213 

V.  Mather 

135 

Sample  v.  Ross 

594 

■».  Ross 

80 

Sampson  v.  Schaffer 

164 

Rosser  v.  ]\IcColly 

372 

V.  Welsh 

718 

Roth  V.  Wells 

371 

Samuel  v.  Sayre 

664 

Rounds  V.  Humes 

479 

San,  &c.,  V.  Lewis 

318 

Rowan  v.  Runnels 

589 

Sanaker  v.  Cushwa 

456 

Rowe  V.  Blanchard 

328 

Sanchez  v.  McMahon 

123 

■V.  Collier 

472 

V.  People 

181 

V.  Smith 

450 

56G 

Sanders  v.  Clark 

13 

V.  State               201, 

205, 

237 

V.  Fisher 

507 

Rowen  v.  King 

74G 

V.  Johnson 

400 

Rowland 

786 

V.  State 

238 

Roystou  V.  Royston 

183, 

227 

Sanderson  v.  Hagan 

445 

Rozar  v.  Burns 

457 

V.  Nashua 

204 

Ruble  V.  McDonald 

248 

Sands  -y.  Rolshouse 

654 

Rucker  v.  Hamilton 

426 

Sanford  v.  State 

165 

Ruckersville  v.  Hemphill 

298 

V.  Wiggin       398, 

539,  543 

Ruckman  v.  AUwood 

671 

Sanger  «.  County 

777 

Ruddick  v.  Ruddick 

518 

Santillan  v.  Mooes 

54 

Rudman  v.  Rudman 

449 

453 

Sapp  V.  Newsom 

334 

Ruffing  V.  Tilton 

227 

Sarah  v.  State                 45, 

366,  516 

Ruggles  V.  Hall 

536 

Sargeant  v.  French 

675 

Rule  V.  Hayden 

624 

Sargent  v.  Denislon     549, 

563,  586 

Rulou  V.  Lintol 

514 

V.  Roberts 

233 

Runyan  v.  Price 

396 

Sarle  v.  Arnold 

96 

Runyon  v.  Clark 

335 

Sartain  v.  Hamilton 

634 

Rush  V.  Whitney 

435 

Sartor  v.  Mcjunkin 

234 

Russ  V.  War 

256 

■y.  Sartor 

318 

Russel  V.  Allard 

361 

Sater  v.  Burlington 

259 

V.  Amador 

378 

Sauni  V.  Jones 

645 

V.  Ball 

170 

575 

Saunders  v.  Freeman 

241 

V.  Conn. 

405 

V.  Fuller 

244 

V.  Ely 

29 

370 

V.  London 

566 

V.  Plamilton 

190 

V.  Johnson 

400 

V.  Kearney 

438 

V.  Woods 

616 

V.  Sclmrmier 

433 

488 

Saundersou  v.  Nashua 

304 

V.  Union 

576 

Savage  v.  DeWolf 

96 

i\  Werntz 

342 

V.  Gulliver 

633 

V.  Wheeler 

149 

V.  Owings 

708 

Rust  V.  Ware 

605 

V.  Walsh 

749 

Rutter  V.  State 

715 

S  a  vary  v.  S  a  vary 

453 

Rutzen  v.  Farr 

54 

Savignac  v.  Garrison 

344 

Rj'an  V.  Anderson 

727 

Saville  v.  Farnham 

346 

V.  Coi)es 

446 

Sawdon  v.  Craig 

13 

V.  Jackson 

93 

284 

Sawyer  v.  Hopkins 

149 

V.  Sewell 

391 

V.  3Ierrill 

888,  373 

Ryckmau  v.  Parkins 

582 

V.  Pratt 

255 

Sayer  v.  French 
V.  Fiuck 

335 
535 

1x1  V 


TABLE  OF  CASES  CITED. 


PAGE 

PAGE 

Sayre  v.  Durwood 

718 

Secrest  v.  Best 

65 

Scammnn  r.  Adams 

724 

Seborn  v.  Williams 

188 

Bcaniu'll  v.  Stralile 

457 

Self  1'.  Deloach 

483 

Scninton  r.  Tilly 

515 

Seligman  v.  Kalkman 

273 

BfliwH'cr  i\  State 

182 

Selkirk  v.  Cobb 

50 

Schaulcr  v.  Porter 

IGl 

248 

Selleck  v.  Turnpike 

257 

Sclu'llhous  V.  Ball 

396 

559 

Sellers  v.  People 

177 

Schcnck  v.  fiercer 

339 

Selman  v.  Wolfe 

360 

Scliorpf  V.  Szaileczky 

58G 

Semple  v.  McGalagan 

597 

Schilling  v.  Durst 

121 

Settle  V.  Alison 

153 

417 

Schindel  «.  Suiiian 

717 

Sevier  v.  McAVhorter 

614 

Sclilencker  v.  Risley 

13G 

511 

Sewall  V.  Glidden 

129 

142 

Schmitz  V.  LaulVrty 

141 

Seward  v.  Jackson 

349 

Schnelte  v.  Sutter 

570 

Sexton  V.  Brock 

47 

563 

Scbouemaii  v.  Fegley 

278 

Seymour  v.  Elmer 

556 

School  r.  Anderson 

780 

V.  .Tudd 

728 

V.  Bragdon 

46 

437 

V.  Miller 

536 

V.  Lynch 

28 

Shackleford  v.  Bailey 

340 

V.  People 

775 

Shaeffer  v.  Kreilzcr 

409 

V.  Pood 

7(50 

Shaeftier  v.  State 

183 

Schroder  v.  Crary 

694 

Shaffer  v.  State 

167 

Schrodt  V.  Bradley 

GO 

Shamokin  v.  Livermore 

328 

Schuchardt  v.  Aliens 

275 

V.  Street 

73 

Schumaker  v.  State 

156 

167 

Shande's 

216 

Schuyler  v.  Mills 

742 

Shank  v.  State 

290 

411 

Sclnvall  I'.  Gingerick 

445 

Shanks  v.  Hays 

457 

ScliAvein  v.  Sims 

141 

Sharmau  v.  IVIorton 

518 

Schwenk  v.  Montgomery 

39 

Sharon  v.  Davidson 

343 

Scofield  V.  Settley 

659 

Sharp  V.  Baker 

128 

Scohej'  V.  Armington 

453 

V.  Johnson 

46 

Scott  V.  Allen 

716 

V.  Whijiple 

133 

V.  Bennett 

611 

Sharpe  v.  Brice 

567 

584 

V.  Brookway 

445 

V.  T raver 

494 

V.  Delk 

558 

Shattuck  V.  Stoneham 

191 

V.  Dnnlap 

653 

Shaw 

620 

V.  Haines 

1 

Shaw  V.  Blair 

664 

V.  Lilienthal 

71 

V.  Davis 

344 

V.  Lloyd 

91 

V.  D wight 

606 

V.  Lunt 

308 

V.  Mosen 

733 

V.  ]\Ioore 

166, 

392 

V.  Slate 

10 

411 

V.  NcAvsom 

425 

v.  Sweeney 

13 

V.  Russell 

83 

V.  Wood 

173 

V.  State 

48 

Sheaff  V.  Gray 

216 

V.  Watkinson 

GG 

Shea  V.  Lawrence 

203 

V.  AVhitloAV 

Gil 

Shepherd  v.  Commonwealth 

676 

Scovill  V.  Baldwin 

2S1 

Sheftall  r.  Clay 

99 

V.  Cliainnan 

G48 

Sheldon  v.  Hartford 

633 

Scranton  v.  Tilley 

515 

V.  Perkins 

10 

Scrimper  v.  Hcilman 

450 

V.  Stryker 

108 

Scrodt  V.  Bradley 

66 

V.  Wood 

401 

737 

Scroggins  v.  Ilar-vrorth 

597 

Shelton  v.  Gill 

GOG 

V.  AVilsou 

279 

Shephard  v.  Shephard 

515, 

51 G 

Seal  V.  State 

87 

Shepherd  v.  Brenton 

13 

Seavy  v.  Dearborn 

189 

V.  Burkhalter 

465 

Seawell  v.  Lowery 

646, 

667 

V.  Com. 

676 

Seborn  v.  Williams 

156 

V.  Hayes 

544 

Seccomb  v.  Provincial     1' 

\C9, 

104 

V.  White 

318 

TABLE    OF    CASES   CITED. 


Ixv 


PACE 

PAGE 

Sheppard  v.  Wilson 

785 

Simpson  v.  Alexander 

758 

Slierer  v.  Collins 

664 

V.  Blunt 

13 

V.  Eston  Bank 

339 

V.  Bowdon 

261 

Sheridan  v.  Medara 

488 

V.  Norton 

28,  43 

Shcrnuin's 

CoG 

V.  Pitman 

179 

Slierinau  v.  Champlain 

56 

V.  Wilson 

491,  515 

V.  Crosby 

557 

Simpkins  v.  Wilson      496 

498,  519 

V.  Duth 

854 

Sinclair  v.  Gray 

277 

V.  Lovejoy 

680 

V.  Tallinage 

445,  486 

V.  Rolberg 

757 

Sisco  V.  Harmon 

389 

V.  Wakeman 

385 

Skelley  v.  Kahn 

356 

V.  Western 

450 

Skifflngton  v.  Clark 

489 

Sherrard  v.  Olden 

528 

Skillmau  v.  Holcomb 

614 

Sherry  v.  AVinton 

023 

Skinner  v.  Dewing 

597 

Sher-win  v.  Colburn 

753 

Skipwilh  V.  Hill 

633 

Shethar's 

760 

Skowhegan  v.  Cutter 

46 

Shewmako  i\  Jones 

387 

Slack  V.  Wood 

598 

Shields  r.  Henry 

425 

Blade's 

4 

ShiflF  V.  Brownell 

736,  761 

Slanter  «.  Whitelock 

95 

V.  Carpreth 

614 

V.  Steamboat 

758 

Shillitoe®.  Claridge 

66,  70 

SI  at  on  V.  Apperson 

723 

Shillito  V.  Theed 

66 

Slayton  v.  Jones 

665 

Ship  Marcellus 

730 

Sledge  V.  Buhn 

737 

Shipp  t\  Suggett 

93 

Sleight  V.  Hcnning 

85 

V.  Wheeless 

597 

Slocomb  V.  Lurty 

444 

Shirk  V.  Cartwright 

408 

Slone  V.  Slone 

514 

Shirley  v.  Lunenburgh 

637 

Sloneckcr  v.  Garrett 

847 

Shobe  V.  Bell 

162 

Sloo  c.  Roberts 

269 

Shoeffler  v.  State 

51,  156 

Sluggs  V.  Anderson 

514,  515 

Shoemaker  v.  State 

102 

Small  V.  Bramard 

801 

Shoeppe  v.  Com. 

640 

V.  Haskins 

643 

Sholts  V.  Judges 

734 

V.  Rogers 

138 

Shook  V.  Thomas 

738,  748 

Smiley  v.  Burpee 

228 

Shore  v.  Jones 

677 

Smiser  v.  Robinson 

621 

Short  V.  Pratt 

654 

Smith  V.  Brannan 

727 

V.  State 

129 

V.  Brush 

501 

V.  Woodward 

322 

V.  Burn 

106 

Shotwell  V.  Taliaferro 

713 

V.  Cansey 

89 

Shrever  v.  Livingston 

710 

V.  Carr 

260 

Shrewsbury  v.  Smith 

18 

V.  Cheetham 

161,  248 

Shrier  v.  Merril 

600 

■».  Cleveland 

138 

Shropshire  v.  Doxey 

575 

V.  Coats 

630 

Shrubsole  v.  Sussams 

398 

«.  Coopers 

719 

Shilmeway  v.  Fowler 

520 

-v.  Craig 

648 

Shute  V.  Barrett 

581 

i>.  Crane 

716 

Sibley  v.  Leffingwell 

46 

V.  Cutf 

546 

Silkman  ®.  Boiger 

514 

V.  Culbertson 

243 

Silloway  v.  Hate 

631 

V.  Cunningham 

748 

Silver  v.  People 

775 

■».  Cushing 

517 

Silverman  «.  Foreman 

395 

V.  Douglas 

280 

Silverthorne  v.  Fowle 

318,  327 

V.  Emerson 

422 

Simmons  v.  Holster 

480 

V.  Fleming 

751 

V.  Harden 

134,  142 

V.  Foster 

747 

Sims  v.  Boynton 

323 

V.  Gorlack 

601 

V.  Chance 

449 

V.  Graves 

212 

V.  Reed 

59 

V.  Hannibal 

277 

V.  Harmauson 

46 

Ixvi 


TABLE    OF   CASES   CITED. 


Smith  V.  Ilicks 

V.  Iliggans 

V.  Huygius 

T.  Hughes 

V.  Jack 

V.  Joiner 

V.  Keels 

V.  Kingslcy 

V.  Matthews 

V.  jVIechanic's 

t\  Jlerrill 

V.  Morrison 

r.  j\ritchell 

V.  Natchez 

V.  Norman 

V.  Nortliern 

V.  Overby 

V.  Page 

V.  Paige 

V.  Parkhurst 

V.  Paul 

V.  Porter 

V.  Powers 

v.  Rice 

V.  Kichards 

t\  Russ 

V.  Sasser 

V.  Shultz 

T.  Smith 

V.  Strader 

®.  Surher 

V.  Tiffany 

V.  Trimble 

V.  Tucker 

V.  Union 

V.  "Williams 

V.  Whitman 

V.  Woodfine      51G, 

Smithson  v.  United  States 
Smock  V.  AVhite 
Smucker  v.  Larniore 
Smyth  V.  Strader 
V.  Titcomb 
Sneed  v.  Creath 

V.  Lee 

v.  jSIoodie 

V.  Osborn 

V.  Town 
Snelling  v.  Darnell 
Snider  v.  Myers 
Snow  V.  Housatonic 

V.  Parsons 
Snowman  v.  Wardwell 
Snyder  v.  i\rvers 

V.  Wilt 
Sockman  v.  Soekman 


Solatre  v.  ^rclvillc 
Somers  v.  Sh)an 
Sorrelle  v.  Craig 
Soule  V.  Dawes° 
South  V.  Colt 

1).  Thomas  „* 

South  Carolina  v.  Moore 
Southcrlaud  v.  Phelps 
Southern  v.  Dial 

V.  Kendrick 
Southmayd  v.  Backus 
South  Western  R.  ]{.  v. 
Soutliwick  V.  Stevens 
South  worth  v.  Ifoag 

V.  Packard 
Sowden  v.  Craig 
Sowerwein  v.  Jones 
Sowle  V.  Pollard 
Spalding  v.  Mayhall 
I  Sparks  v.  Beavers 
I  Spaulding  v.  Swift 
I  «.  ilallenbeck 

V.  Thompson 
Spear  v.  Place 
Speeding  v.  Young 
Spence  v.  Holman 
V.  Onstoot 
Spencer  v.  De  Fruuce 
V.  Doane 
V.  Kinnard 
V.  Kunkev 
v.  Morgan 
Spillars  v.  Curry 
Spivey  v.  State 
Spong  V.  Hog 
Spray  v.  Thompson 
Sprague  v.  Childs 
Spring,  &c. 
Spring  V.  Baker 
«.  Evans 
V.  Garden 
Springer  v.  State 
Spurk  V.  Vangundy 
I  Spurlin  v.  Rutherford 
I  Spurlock  «.  Fulks 
I  Stacy  V.  Cobbs 
Stainger  v.  Andrews 
!  Sfainton  v.  Beadle 
I  Stalbird  r.  Beattie 
Stalls  V.  State 
Standley  v.  Miles 
Stanley  v.  Nelson 

V.  Whipple 
!  Stanton  v.  State 
Starbird  v.  Eaton 
Stark  V.  Barnes 
'•.  Noble 


j1. 


PAGE 

288 
67 
77 
746 
30 
528,  539,  559 
6G8 
744 
308 
370 
653 
Paulk  569 
583 
445 
630 
23 
255 
614 
126 
457 
769 
439 
714 
753 
538 
16 
293 
156 
499 
109 
648 
453 
559 
384 
542 
753 
145 
179 
754 
428 
361 
208 
660 
•  143 
644 
278,  314,  362 
342 
156 
737 
197 
448 
291 
458 
237,  457 
640,  642 
757 
450 


TABLE    OF   CASES    CITED. 


Ixvii 


PAGE 

PAGE 

Starkweather  v.  Loomis 

526 

State  V.  Cucuel 

215 

Starr  v.  Torrey 

550 

V.  Damery 

89,  391 

State  V.  Alt'ord 

27, 

394 

«.  Davis 

179 

n.  Allan 

54 

v.  Dick 

43,  315 

V.  Allen 

291, 

354 

V.  Dickinson 

175 

v.  Almy 

755 

x>.  Doon 

246 

V.  Andrews  189,  207, 

211, 

342 

V.  Donevau 

645 

V.  Anderson 

369 

453 

V.  Douglas 

48,  244 

V.  Anson 

715 

V.  Duncan 

143 

V.  Anthony 

188 

V.  Drawdy 

316 

V.  Arrington 

150 

t>.  Elliott 

449 

V.  Austin 

158 

V.  Engle 

233 

V.  Ayer                  185, 

210, 

247 

V.  Farrar 

776 

V.  Baker 

115 

291 

V.  Flanders 

435 

«.  Baldy 

199 

V.  Forshner 

164 

V.  Bank 

268 

«.  Fox 

179,  230,  389 

V.  Barron 

316 

V.  French 

392 

V.  Barton 

233 

w.  Funck 

130 

■y.  Bean 

509 

v.  Gallagher 

23 

V.  Bennett 

173 

184 

V.  Galloway 

623,  711 

V.  Bird 

405 

1).  Gates 

92 

V.  Biscoe 

684 

V.  Garrigues 

230 

v.  Black 

48 

V.  Gemmill 

360 

V.  Blennerhasset 

510 

V.  Giles 

711 

V.  Boatwright 

156 

V.  Gillick 

168,  178 

V.  Bodly 

648 

11.  Godwin 

250 

■D.  Bogue 

718 

V.  Goodwin 

134 

V.  Bonchon 

713 

V.  Gordon 

149 

1).  Bonds 

455 

V.  Gray 

436 

v.  Boyle 

623 

v.  Gregory 

368 

V.  Brazie 

212 

V.  Haben 

775 

D.  Brooks 

434 

V.  Haddock 

751 

V.  Brown 

115 

v.  Hall 

381 

V.  Bryant 

128 

1G2 

V.  Hammond 

481 

V.  Buckner 

156 

173 

V.  Hand 

115 

V.  Buchanan 

684 

B.  Hanouse 

115 

V.  Bullard 

199 

«.  Harlow 

233 

V.  Bnnger 

179 

V.  Harris 

863,  403 

V.  Burge       374,  518, 

578, 

725 

V.  Harrison 

304,  385 

V.  Caleb  Jones 

124 

V.  Harding 

493 

V.  Camp 

91 

V.  Harlow 

233 

■».  Carr 

510 

v.  Hascell 

169,  203 

V.  Carstaphen 

235 

V.  Hays 

156 

V.  Cason 

751 

V.  Henley 

506 

V.  Cherry 

394 

V.  Herring 

577 

V.  Christmas 

377 

V.  Hill 

445 

«.  Clark 

34 

«.  Hinkle 

179 

V.  ClaKa 

282 

V.  Howard 

181,  194,  247 

V.  Clump 

367 

V.  Hudson 

689,  091 

V.  Cockman 

187 

V.  Hunt 

711 

V.  Cole 

168 

v.  Igo 

233 

V.  Commissioners 

74 

V.  Jones        165, 

344,  635,  751 

«.  Court 

784 

V.  Johnson 

683 

V.  Cowan 

40 

ti.  Judge 

751,  780 

v.  Credle 

751 

V.  Kerby 

662 

V.  Cruise 

453 

V.  Kimball 

223 

v.  Crytes 

450 

®.  Kingsley 

625 

Ixviii 


TABLE   OF   CASES   CITED. 


State  15.  Kirkc 
V.  Knight 
V.  Lainon 
V.  Laniont 
V.  Larimore 
V.  Larrabee 
V.  Lavally 
V.  Law  son 
V.  Laj'ton 
V.  Lhulsey 
r.  Littlefield 
V.  Lochart 
V.  Lvuott 
V.  Lytle         85, 

t.  Mace 
V.  ]\Iadoil 
v.  ]Maishal 
V.  INIarshall 
V.  IMartiii 
V.  McCurry 
V.  McGrorty 
V.  ;McGuire 
V.  ISIcLauglilin 
V.  Miller 
V.  ;Monk 
V.  Woody 
i>.  ^loore 
V.  Mullen 
V.  Murph 
V.  ^lussey 
V.  Nat 
V.  Neville 
V.  Nicholas 
V.  Noblett 
V-  Noggle 
V.  Northern 
v.  Norton 
V.  Noi-\vood 
'V.  Nutting 
V.  O'Brien 
V.  Pace 
V.  Page 
V.  Patrick 
«.  Pepper 
V.  Perry 
V.  Pierce 
1).  Pike 
V.  Pile 
v.  Porter 
V.  Powell 
V.  Powers 
V.  Pratt 
V.  Prescott 
T.  Price 
V.  Prine 
V.  Hash 


50, 


18G,  29G, 


State  V.  Riley 

1).  Pobinson 

V.  Polifrischt 

V.  Rollaud 

V.  Rollins 

V.  Rorabacher 

V.  Ross 

V.  Ruhl 

V.  Salge 

V.  Saliba 

V.  Sargent 

V.  Sater 

V.  Schlagel 

V.  Scott 

V.  Shaw 

V.  Sheadey 

V.  ShcUeday 

V.  Sherbourno 

V.  Shrcve 

V.  Shule 

V.  Sims 

v.  Simmons 

V.  Simons 

1).  Sipult 

V.  Smith       257,  285,  811,  867 


rAGE 

115 
381 
439 
514 
165 
266 

rsi 

401 
12 
314 
389 
181,  453 
266 
29 
189,  266 
187 
156,  175,  185 
231 
391 
158 
113 
173 
113 
224 


V.  Solomons 

V.  Somerville 

V.  Spcnlove 

V.  Sparrow 

V.  Stedman 

V.  Taylor 

V.  Thompson 

V.  Tiluhman 

V.  Tindall 

V.  TuUer 

V.  Underwood 
V.  Upchurch 
V.  Updike 
V.  Upton 
V.  Valentine 
V.  Vaughan 
V.  Wadsworth 
V.  Wallace 
•B.  Ward 
V.  Weber 
V.  AVhit 
V.  Wightman 
V.  AVilliams 
V.  Wilson 


751 
372 
114 
201 
173 
115 
802,  640 
211 
222,  242 
179 
91,  149 
745 
114 
313 
147 
715 
419,  420 
1-29 
179,184,  196 
233 
50,  3G8,  743 
542 
300,  543 
156,  192,  435,  662, 
739 


V.  Winningham 
V.  Wise 
D.  AYissmark 
V.  Woody 
V.  Wright 
State  Bank  v.  Hunter 
V.  McGuire 


119,  120 
157,  159 
266 
449 
115 
7 
457 


TABLE    OF   CASES   CITED. 


Ixix 


PAGE 

PAGE 

State  Bank  v.  Wilson 

453 

Stokes  V.  Arey 

43 

State  of  Maine  v.  Call 

77 

V.  Burrell 

320 

,326 

States  V.  Bird 

158 

V.  Jacobs 

688 

699 

Steadman  v.  Ilolman 

646 

Stone  V.  Chamberlain 

764 

769 

Steagall  v.  McKellar 

331 

«.  Danbury 

347 

Steamboat  v.  Buckner 

263,  385 

V.  Spillman 

733 

V.  Matthews 

445 

V.  State      28,  88, 

201, 

236, 

Stearns  v.  Allen 

496 

240 

,250 

V.  Fiske 

21 

Stoppenbach  v.  Fohriart 

713 

Steckel  v.  "Weber 

726 

Storer  v.  White 

428 

641 

Steel  V.  Bridenback 

601 

Storey  v.  Brennan 

304 

Steelmau  v.  Steelman 

415 

Stotcsbury  v.  Smith 

630 

Steigers  v.  Darby 

100 

Stoughton  V.  Barrett 

770 

Steinback  v.  Krone 

122 

Stout  V.  Colver 

584 

Steiuman  v.  Tolivar 

7,82 

V.  People 

182 

Stell  V.  Glass 

750 

Stover  V.  State 

176 

Stephen  v.  State 

674 

Stowell  V.  Goodeuow 

380 

Stephen's 

162,  239 

Stowers  v.  Milledge 

718 

Stephens  v.  Felt 

570 

Stoyel  V.  Westcolt 

653 

V.  Hume 

635 

St.  Paul  V.  Ruby 

562 

V.  People       233, 

239,  440 

Straughan  v.  State 

168 

Stephenson  v.  Mansony 

70,  71 

Street  v.  Blue 

405 

Steppacher  v.  Reneau 

567 

V.  Colver 

136 

Steptoe  V.  Harvey 

404 

V.  Francis 

702 

Sterret  v.  Creed 

40 

Streeter  v.  Streeter 

333 

Sterrett's  v.  Kaster 

434 

Strippelman  v.  Clark 

100 

Stetham  «.  Shoultz 

550 

Stroh  V.  Hess 

320 

Stetson  V.  Goldsmith 

601 

Strong  V.  Daniel 

614 

Steubenyille  v.  Patricks 

635 

Stroud  V.  Frith 

264 

Stevens  «.  Hewitt 

741 

V.  Mays 

441 

V.  State 

114 

«.  Springfield 

450 

Stevenson  v.  Belknap 

586 

Strozier  v.  Carroll 

869 

Steward  v.  Dixon 

744 

Stuart  V.  Binsse 

739, 

740 

Stewart  v.  Betzcr 

706 

V.  Simpson 

276 

D.  Durret 

528 

Stubbs  V.  Leavitt 

599 

V.  Fitch 

149 

Stuble  V.  Walpole 

736 

■y.  Hamilton 

464,  500 

Studley  «.  Hall 

177 

V.  Small 

96,  210 

Stumps  V.  Kclley 

257, 

457 

«.  State 

175 

Sturgeon  v.  Ferron 

499 

V.  Stringer 

733 

V.  Hitchens 

78 

Stiles  V.  Chapman 

670 

Styles  V.  State 

677 

t\  Jackson 

664 

Suggs  V.  Anderson 

514, 

515 

«.  Lightfoot 

637 

V.  Suggs 

783 

v.  McKibben 

63 

Sultana  v.  Chapman 

330 

V.  Tilford 

437 

Sullivan  v.  Adams 

705 

Still  V.  Glass 

274 

V.  Collins 

268 

Stimpson  v.  Wilson 

499 

V.  Dollins 

208, 

451 

Stix  V.  Pump 

234 

V.  Honacker 

311 

St.  John  V.  Kidd 

97 

V.  Richardson 

484 

St.  Louis  V.  Murphy 

535 

Sully  V.  Noble 

111 

Stocking  V.  State 

315 

Sultana  «.  Chapman 

330 

Stockton  V.  Frey 

745 

Summerville  v.  Painter 

640 

V.  Graves 

325 

Sumner  v.  Com. 

684 

Stockwell  V.  Holmes 

440 

V.  State 

265 

Stoddard  v.  Long  Island 

59 

Sumrall  v.  State 

169 

V.  ]\lcllwain 

287 

Sun  V.  De wight 

757 

V.  Newman 

726 

Sutcliffe  v.  State 

119 

Ixx 


TABLE   OF   CASES   CITED. 


] 

PAGE 

PAGE 

Sutherland  r.  Phelps 

744 

Taylor  v.  Sors])y 

220 

Sutlilli'.  Gilbert 

233 

V.  Strong 

614 

Sutlle  V.  Batie 

173 

V.  Sutton 

590 

Suttou  V.  Dana 

137 

V.  Wat  kins 

343 

V.  ^ladre 

306 

Teackle  v.  Crosl)y 

750 

V.  Mitchell 

66 

Teas  V.  Robinson 

705 

V.  Petty 

167 

Tedd  V.  Douglas 

574 

Suydam  v.  Huprgeford 

735 

Tefft  V.  Marsh 

546 

f.  Williamson 

643 

Tegarden  v.  Carpenter 

487 

Swain  v.  Etling 

837 

Teller  v.  Wethcrcll 

627 

Swagi-x-rty  v.  Stokley 

473 

Ten  Broeck  v.  Woolsey 

528 

Swamscott  v.  Walker 

411 

424 

Tenney  v.  Butler 

380 

Swan  V.  Hyde 

452 

Terre  Haute  v.  Vanatta 

6.  579 

Swartzel  v.  Dey 

583 

Territory  v.  Lutshaw 

505 

V.  Rogers 

495 

528 

Terry  v.  Robins 

24 

Sweaney  v.  Bledsoe 

469 

V.  Sickles 

283 

S-\veem  v.  Steele 

351 

V.  State 

379 

Sweeney  v.  Jarvis 

7 

Testard  v.  Neilson 

635 

V.  People 

620 

,  645 

Teyhnam  v.  Tyler 

415 

Swift  V.  Bennett 

848 

Thacher  v.  Jones 

56 

V.  Whitney 

435 

Thayer  v.  Davis 

396 

Swingley  r.  Ilaynes 

732, 

740 

V.  Society 

142 

Swij)es  V.  Pemourssin 

458 

V.  Stevens 

123 

Symmes  v.  Brown 

321 

V.  United 
V.  Van  Vleet 
Thelluson  v.  Fletcher 
Theobald  v.  Hare 

129 
224 
565 
539 

T. 

Thigpen  v.  Mississipi)i 
Thomae  v.  Zushla 
V.  Zushlag 

312 
149 
244 

Taber  v.  Hutson 

385, 

386 

Thomas  v.  Brashear 

605 

Tahor  v.  Staniels 

313 

V.  De  Graffeureid 

82 

Talbott  V.  Jones 

136 

V.  Harris 

577 

Taliaferro  v.  Branch 

598 

V.  Hatch 

466 

Tallahassee  v.  Macon 

458 

V.  Lawsou 

31 

Talmadge  v.  Nortlirop 

213 

V.  State  167,  180, 

288,  386, 

V.  Potter 

690 

400,  544 

Talmage  v.  Davenport 

271 

V.  Sternheimer 

388 

Tamvaco  v.  Lucas 

327 

V.  Tanner 

59 

Tapp  V.  Beverley 

605 

V.  Thomas 

318 

Tappan  v.  Brucu 

717 

V.  Zushla 

149 

V.  Burnham 

43,  45 

Thomason  v.  Odum 

323 

Tappin  v.  Clarke 

506 

Thomkins  v.  Hill 

407 

Tarbox  v.  Fisher 

733 

Thompson  v.  Andrews 

347 

Tardy  v.  Murray 

281 

V.  Barclay 

225 

Tarlington  v.  Spencer 

483 

V.  Callison 

517 

Tarra  v.  Nuuamaker 

258 

^\  Clendeuing 

542 

Tate  V.  Tate 

741 

V.  Farr 

128 

Tattersall  v.  Haas 

435, 

720 

V.  French 

629 

Taunton  v.  Smith 

575 

V.  Gallison 

517 

Taylor  v.  Betsford 

212, 

223 

V.  Lothrop 

54 

V.  Com. 

640 

V.  McConnell 

658 

V.  Cook 

123 

V.  jMcKim 

704 

V.  Jones 

238 

v.  Morris 

432,  584 

V.  Kelley 

273, 

367 

V.  People 

156 

V.  Morrison 

260 

V.  Perkins 

163 

TABLE    OF    CASES    CITED. 


Ixxi 


PAGE 

Thompson  e.  State  179 

V.  Thompson  298,  551, 

734 

V.  Timlin  188 

V.  Turner  631 

V.  Uiidcgraff  456,  529 

V.  Williams  99,  100 

V.  Wright  311 

Thompson's    162,  201,  235,  491,  509 

Thomson  v.  Wilson  88 

Thorn  v.  Clendcuin  620 

Thorndike  v.  Boston  54 

Thornton  ».  Lane  153,  461 

Thorp  y.  Thorp  603 

Thorpe  d.  County  689 

Thrasher  v.  Tyack  24 

Thurman  v.  Cameron  88 

Thurmond  v.  Trammell  411 

Thurtell  y.  Beaumont    66,  508,  524 

Thwaites  v.  Sainsbury  69 

Tiffin  V.  Forrester  445 

Tifield  V.  Adams  150,  300,  382 

Tilden  v.  Gardiner  586 

Tiley  v.  Moyers  320 

Tilford  1).  Ramsey  684 

Tilley  v.  Spalding  444 

Tilman  v.  Stringer  44 

Tillman  v.  Hatcher  498 

V.  Jackson  716 

Tillotson  V.  Cheetham  581 

Tillson  V.  Crim  498 

Tilton  V.  Kimball  83 

Timlin  v.  Den  208 

Tindal  v.  Brown  333 

Tipton  V.  Triplett  258 

Tisdale  v.  Mitchell  396 

Titcomb  v.  Potter  597 

Tobin  V.  Gregg  311,  338 

Todd  «.  Boone  Co.  458,  571 

V.  Campbell  258 

v.  Fish  591,  597 

«.  Hale  652 

V.  Philhower  341 

V.  State  523,  545 

Toledo  V.  Foster  358 

V.  Goddard  302 

Tolland  v.  Willington  17,  658 

Tolman  v.  Race  449 

Tomkins  v.  Corry  461,  491 

V.  Easton  29 

Tomlin  w.  Den  503 

V.  State  623 

Tomlinson  v.  Wood  680 

Tompkins  v.  Hyatt  714 

Tooker  v.  Gormer  426 

Totten's  731 

Toulmin  v.  Lescsne  144 


PAGE 

Tovel'B  233 

Tovey  v.  Young  588 

Tower  v.  Lamb  749,  752 

Townley  v.  Jones  550 

Towns  V.  Riddle  395 

Townsend  v.  Hughes  582 

V.  Masterson  722 
Townshend  v.  Townsheud         314 

Townson  «.  Moore  392 

Trabue  v.  McKettrick  40 

Tracy  v.  Card  218 

V.  Hartman  459 

Tradesmen's  v.  Fairchild  634 

Traherne  v.  Gardner  152 

Train  v.  Collins  372 

Traun  v.  Kiefter  273,  278 

V.  AYittick  146 

Travis  v.  Barger  418 

Traynor  v.  Johnson  361 

Treauor  v.  Donahoe  563 

Treat  v.  Lord  296,  385 

V.  Reilly  450 

Treeling  v.  Seeley  10 

Trellinger  v.  ^Yehh  84 

Trevor  ■».  McKay  597 

Trice  V.  Smith  638 

Trigg  V.  Conway  407 

Triplett  V.  Turner  615 

Tronson  v.  Dent  722 

Trott  V.  West  80,  135 

Trow  V.  Messer  676 

Troxdale  v.  State  177 

Troxel  v.  Clarke  729 

Troy  V.  Clarke  147 

Trubody  v.  Brain  68 

Truesdale  v.  Ford  340 

Trullinger  v.  Webb  188 

Trulock  V.  State  523 

Trulnck  v.  Peeples  106 

Trustees,  «fec.  780 

Trustees  v.  Crouin  82 

Tucker  v.  Cochran  148 

t.  Gordon  77 

V.  Heniker  226 

V.  Peaslee  46,  384 

V.  Respass  336 
V.  South  Kingstown  148,157 
208,  243, 246 

V.  The  Town  157 

Tudor  V.  Peck  654 

Tuey  V.  Owens  264 

Tufts  «.  Seabury  362 

Tullv  V.  Harioe  352 
Tullidge  V.  Wade         410,  567,  586 

Tunnell  v.  Watson  143 

Turnbull  v.  Witherspoon  88 

Turuley  v.  Evans  515,  543 


Ixxii 


TABLE    OF   CASES   CITED. 


F 

AGE 

Turner  e.  Collins 

670 

V.  Commonwealth 

713 

v.  Hamilton 

Ct") 

GOO 

V.  Loler 

•SOo 

807 

T.  Ross 

80 

V.  Smith 

132 

•v.  Tuolumne 

Ifil 

V.  "Waters 

751 

Turns  v.  Com. 

160 

Turquand  v.  Moss 

758 

Tursou  V.  Welch 

123 

Turton  v.  Burk 

338 

Tuten  V.  Stone 

458 

Tutton  V.  Andrews        57, 

428 

572 

Tuttle  V.  Brown 

143 

311 

V.  Buck 

274 

V.  Cooper 

506 

Tyler  v.  Olney 

652 

Tyrrell  v.  Brlstow 

203 

u. 


Ubsdell  v.  Root 

719 

Unan.nst  v.  Kraemer 

409 

Underhill  v.  Thomas 

602 

Union  v.  Crary 

395, 

430 

Union  Bank  v.  Middlebrook 

85 

V.  < 

3ollee 

288 

United  States  v. 

Battiste 

817 

V. 

Bird 

153 

V. 

Collier 

130 

V. 

CoolidiJ^e 

555 

V. 

Cornell      194, 

196 

7). 

Dickinson 

175 

V. 

Gilbert 

119 

V. 

Gomez 

746 

V. 

Harding 

82 

V. 

Holmes 

440 

V. 

^Minnesota 

685 

v. 

One  Still 

283 

V. 

Pogo-y 

738 

V. 

Preston 

738 

V. 

Reid          219 

248 

V. 

Riley 

816 

V 

Shackleford 

156 

1). 

Shaw 

820 

V. 

Shine 

317 

V. 

Stowell 

166 

V. 

AVilkinson    23,  86 

Updike  V.  Pkillman 

311 

Upson  V.  Raiforti                  291 

849 

Urban  v.  Kraig? 

198 

Utica  V.  Badger 


279 


Vaden  v.  Ellis 
Vaise  v.  Delaval 
Vale  ®.  Bajdc 
Valentine  v.  Norton 
Valier  v.  Hart 
Vallance  v.  King 
Vananken  v.  Beemer 
Van  Blaricum  v.  People 
Vance  v.  Carle 

V.  Com. 

V.  Schuyler 
Van  Cort  v.  Van  Cort 
Vandegrift  v.  Page 
Vandervoort  v.  Smith 
Van  Eman  v.  Stanchfield 
Van  Hook  v.  Walton 
Van  Huss  v.  Rainbolt 
Vannerson  v.  Pendleton 
Van  Ness  v.  Cheeseborough 
Van  Norman  v.  Wheeler 
Vannoy  ?;.  Givens 
Van  Orman  v.  Spafford 
Vaupool  ('.  Commonwealth 
Van   Schoonhoven  v.  Corn- 
stock 
Vantilburgh  v.  Shann 
Van  Vaceter  v.  Brewster 
Van  Valkeuburg  v.  Hull 
Vardeman  v.  Byrne 

V.  Edwards 
Vamey  v.  Caswell 
Varnum  v.  Taylor 
Vasquez  «.  Ewing 
Vaughn  v.  Fuller 
V.  Jolmson 
V.  Montgomery 
Vedder  v.  Fellows 
Veiths  n.  Hagge 
Vennard  v.  McConnell 
Vennum  y.  Harwood 
Venus 

Verbcck  v.  Verbeck 
Verdier  v.  Trowell 
Vernon  «.  Hankey 
Verzen  v.  McGregor 
Vestal  V.  Burditt 
Vicary  v.  Farthing 
Vick  V.  Maulding 
Visher  v.  Webster 
Violet  V.  McKay 
Violet t  V.  Dale 
V'^ivion  V.  Lafaj'ette 
Voltz  V.  Newbert 
Von  Phul  V.  MiAui 

V.  St.  Louis 


p 

134, 
242, 


VGE 

165 
245 

66 
628 
633 
388 
168 

86 

20 
225 

79 
401 
669 
497 
318 
352 
487 
529 
622 
448 
738 
425 
684 

675 
722 

62 

22 
501 
498 
761 
224 
322 
597 
591 
458 
330 

82 
138 
176 
737 
703 
575 

16 
313 
638 
218 
671 
382 
411 
653 

17 
648 
295 
484 


TABLE   OF    CASES    CITED. 


Ixxiii 


W. 

PAGE 

Waddams  v.  Humphreys  G 

Wade  V.  Ilalli^au  71 C 

•y.  Simeon  4;59 

Waddel  ».  Slate  457 

Wadlington  v.  Gary  35 

Wadswortli  v.  Harrison  455 

V.  Thompson  403 

Waffle  V.  Dillenbeck  376 

Waujgeuheim  v.  Hook  112 

Wahner  v.  Shnlcuberger  713 

Wait  V.  Maxwell  556 

V.  McNeil  405 

Wakefield  v.  Smithwick  299 

Wakeman  v.  Dalley  853 

V.  Robinson  45 

V.  Sprague  169 

Walcott  V.  Keith  45,  381 

AValden  v.  Murdock  11,  31 

Waldie  v.  Doll  887 

Walker  v.  Armour  6 

V.  Ayers  G07 

V.  Badger  664 

V.  Blassiugame  70 

V.  Butler  835 

V.  Collier  268 

V.  Cox  6 

V.  Fields  415 

V.  Hale  38 

V.  Hawxhurst  408 

V.  Herron  355 

V.  Hunter  203,  217 

V.  Kennison  168 

V.  Leighton  412 

9).  Long  70 

V.  Mobile  638,  639 

V.  Robbins  597,  601 

V.  Sanborn  391 

V.  Smith  576 

B.Taliaferro  136 

V.  Walker  203,  454 

V.  Wilson  578,  579 

V.  Wootten  295 

Wall  V.  Coodenough  301 

V.  Provident  27,  102 

Wallace  v.  Brown  751 

V.  Frazier  575 

v.  Hilliard  153 

V.  Jerone  255 

V.  Middlebrook  634 

V.  Seales  639 

Wallen  v.  Williams  656 

Waller  v.  Graves         494,  504,  505 

Wallingford  v.  Dunlap  142 

AValls  V.  Preston  22 

Walsh  V.  Dart  112 

V.  Washington  319 


PAGE 

Walpole  V.  Renfroe  411 

Walston  V.  Com.  156 

AValter  v.  Brandies  559 

Walters  v.  Chinn  729 

Walton  V.  Pavne  49 

V.  Uiiited  States  110 

v.  AValton  392 

Walworth  v.  Walworth  626 

Wampler  v.  Walker  9 

Ward  V.  Bailey  151 

©.Fuller  391,402 

V.  Herring  256 

V.  Lathrop  672 

V.  Moore  639 

V.  Patterson  68 

v.  Taylor  150 

v.  Woodbury  66 

Warden  v.  Hughes  272 

Ware  «.  Robinson  711 

V.  Ware  392 

Warne  v.  Baker  730 

Warner  v.  Hardy  293,  383 

v.  Miltenberger's  319 

V.  Robertson  161,  452 

Warnick  v.  Grosholz  326 

Warren  v.  Hope  492 

V.  Jones  328 

v.  McHatten  391 

i;.  State  513,514 

V.  Williams  40 

Warwick  v.  Bruce  508 

V.  Michael  616 

Wash  V.  Com.  648 

Washburn  v.  Gould  496 

Washington  v.  Durant  620 

Wassels  v.  Slate  391 

Wassen  v.  Heflher  729 

Watei-man  v.  Bristol  738,  740 

Waters  v.  Bristol  384,  449,  489,  585 


V.  Gilbert 
v.  Riggin 
V.  Waters 
Waterson  v.  Seat 
Watkins  v.  Logan 
v.  Rogers 
V.  Watkins 
Wats  1).  Brains 
Watson  V.  Gowar 

■y.  Hamilton 
V.  McLaren 
V.  Sullivan 
V.  Sutton 
V.  Tarpley 
V.  Thrall 
V.  Walker 
V.  Watson 
Watt  V.  Alvord 


93 

301 

0,  12,  141 

441 

615 

124 

6 

158 

532 

80 

88 

639 

496 

311 

761 

221,  355 

243 

898 


Ixxiv 


TABLE   OF   CASES    CITED. 


PAGE 

PACE 

Watt  V.  Cobb 

5!)9 

Welsh  V.  State 

515 

Wattersou  v.  "Watterson 

537 

Wendall  v.  Satford 

406 

Wattingbam  v.  State 

113 

Wendell  v.  Moulton 

2r,3, 

449 

Watts  V.  Gaylc 

603 

V.  Salford 

451 

474 

V.  Greenlee 

143 

Werkheiser  v.  Werkheiser 

405 

V.  Iloward 

501 

Wesley  v.  State 

230 

V.  Jobuson  100,  308, 

504,  538 

West  V.  Duffey 

455 

Waujrb  V.  Andrews 

756 

Western  v.  Walker 

260 

Wayland  v.  Porterfield 

737 

V.  Woods 

589 

^Vayne  v.  Berry 

46,  385 

Weston 

030 

Ways  w.  Collins 

451 

Wetherbee  v.  Carroll 

754 

Weatbered  v.  Mays 

323 

Wetmore  v.  Plant 

660 

Wcatbers  v.  Dorster 

33 

V.  Woodhouse 

058 

Weaver  v.  Commonwealtb 

642 

Wetzlar  v.  Northwest 

445 

V.  Darby 

277 

Wharton  v.  State 

624 

Webb  V.  Kelly  ' 

434 

Wheaton  v.  North 

578 

V.  Mears 

320 

Wheeldon  v.  Lowell 

363 

V.  Tbonipson 

565 

Wheeler  v.  Moody 

296 

Webber  v.  Davis 

53 

V.  Pitt 

487 

V.  Kinysland 

413,  418 

V.  Schroeder 

326 

V.  Stearns 

346 

V.  Shields 

58 

V.  Webber 

707 

V.  State 

88 

Weber  v.  Kingsland    308, 

413,  418 

v.  Troy 

517 

V.  Zimmerman 

388 

Whelchell  v.  State 

198 

Webster  v.  Stearns 

346 

Whetmore  v.  Mnrdock 

499 

Weddle  v.  Stark 

457 

Whipple  V.  Wing 

303 

Weddiugtnu  v.  Sloan 

711 

Whirley  v.  Whiteman 

358 

Weed  «."AVeed 

642 

Whitacre  v.  Culver 

307 

Weeding  v.  Mason 

574 

Whitaker  v.  Carter 

156 

Weeks  v.  Lowerre 

408 

1).  Merrill 

126 

V.  Robie 

486 

V.  Perry 

257 

Weimer  v.  Lowery 

498 

Whitbeck  v.  Whitbeck 

501 

Weir  V.  McGee 

343 

Whitcher  v.  Shattuck 

209 

Weisenecker  v.  Kepler 

716 

Whitcomb  v.  Williams 

107 

AVeisiger  v.  Chisbolm 

378 

White  V.  Bailey 

136 

Welborn  v.  Spears 

43 

V.  Barton 

475 

V.  AVeaver 

02 

V.  Cabal 

590 

608 

Welch  V.  Butler 

43 

V.  Cazenave 

716 

V.  Van  Bebber 

649 

V.  Chadbourne 

88 

V.  Watts 

257 

1).  Clapp 

764 

768 

V.  Welch 

233 

V.  Clayes 

450 

Weld  V.  Came 

348 

V.  Crew 

609 

V.  Chadbourue 

459 

V.  Green 

571 

Weldcn  V.  Francis 

453 

■y.  Harvey 

708 

Wellington  i\  Stratton 

706 

V.  Hass 

273 

279 

Wellboi-n  v.  Bonner 

607 

V.  McCall 

736 

AVells  V.  Burbank 

393 

V.  ^lalcolm 

750 

V.  Clements 

291 

V.  IMoses 

178 

V.  INIelville 

109 

V.  Newton 

30 

■«/Prince 

387 

1).  Palmer 

625 

V.  Reynolds 

747 

V.  Poorman 

6,  13 

108 

V.  Sanger 

500,  538 

V.  Richmond 

88 

V.  Sawyer 

563 

V.  Ryan 

529 

1).  Smith 

600 

D.  Trinity 

7 

V.  Waterhouse 

444 

V.  Walleu 

393 

516 

V.  Walker 

397 

V.  Walker 

313 

370 

Welsh  V.  Dusar 

79 

■».  White 

391 

TABLE   OF   CASES   CITED. 


Ixxv 


■White  V.  Wood 

Wliite,  &c.  . 

Whiteliouse  v.  Hemmant 

Whiteside  v.  Button 
Whitesidcs  v.  Russell 
Whithead  v.  Keyes 
Whitfield  V.  Westbrook 
Whitman  v.  Boston 
Whitmore  v.  Divilbis 
Whitner  v.  Hamhu 
Whiting  V.  Cochran 


n^llwiUard..Goodenough 


776 
95 
455 
129,  143 
217,  400 
305 
270 
721 
307 

634,  687, 653, 

654 

680,  631, 663 


V.  Cook 
V.  Otis 
Whitlock  «.  Bueno 
Whitner  v.  HamUn 
Wliitney^.Bayley 
v.  Blunt 
V.  Board 
V.  Cook 
ti.  Crim 
V.  Goin 
V.  Mills 
V.  Thayer 
^.  Silver 
V.  State 
-y  Whitman 

^'>'"-:.Sicfctlony387,300,451 


453 
307 
414 
13 
693,  694 
663 
874 
385 
756 
391 
768 
336 
217 
389 


Whittaker  v.  Perry 
Whitten  v.  Kuox 
Whittelsey  v.  Kellog 
Whitwell  V.  Atkmson 

Whitty  V.  Carr 

Wichtrecht  V.  Fassnacht 

Wickliffe  v.  Lynch 
V.  Sanders 

Wickersham  v.  People 

Wickwire  v.  State 
Wiggiu  V.  Plumer 

Wiggins  ®-  ^^■'^y 

^=       V.  HoUey 
Wio-litman  «.  Providence 
Witbor  V.  Gillicuddy 
Wilcox  V.  Boothe 
^.  Green 
Wilder  ».  Sprague 
Wildman  v.  Rider 
Wildy  V.  Bonncy 
Wiley  v.Kelsey 
D. State 
1).  Smith 
Wilhelmi  V.  Thonngton 
Wilkinson  B.Greely 

V.  Griswold 
V.  Martin 
V.  Payne 


«.  ShatTer 
v.  Singer 
«.  Warren 
t,.  Wetherbee 
Willcoxon  V.  Eason 
Willie  i).Perkii^s. 
Williams  v.  Averiii 
V.  Baldwin 
V.  Bentlcy 
v.  Bradbury 
v.  Brasiield 
1).  Brickell 
V.  Buker 
V.  Burchinal 
V.  Caplinger 
1).  Coward 
•J).  Craig 
1).  Dewitt 
v.  Field 
V.  Gt.  Western 
v.  Hart 
V.  Hartshorn 
fl.Heywood 
B.  Insurance  Co. 
v.  Jones 
«.  Judge 
1).  Lockwood 
B.  Mizell 
v.  O'Keefe 
«.  Pearson 
75.  People 
v.  Saunders 
^.  Smith 
V.  State 


PAGE 

423 
241,  581 
518 

83 
555 
351 

13 
393 

519 
326,  335,  349 

607 


461 
49 
461 
708 
601 
679 
'     670 
393 
714 
193 
656 
279,  349 
328 


•1 

449 

329 

639 

110 

136 

314 

144 

114 

738 

176 


'B.  Stewart 
V.  Vanderbilt 
«.  Williams 
V.  Wright 


7191  Williamson  ..Johnson 
283,  431 


335,  580 
498 
363 
95 
333 
707 


-y.ISfabers 
t,.  Western 
Willing  '0.  Swasey 
Willis  V.  Bullitt 
V.  Gordon 
V.  Lewis 
fl.  Willis 
«n  I  Williston  V.  Fisher 
485Pwillougl^by..Comstock 

231    Wilmot  V.  Howard 
'  Wilson  «.  Abrahams 
-B.  ^tna 
-a.  Brandon 
-».  Burks 
1).  Butler 
v.  Clarke 


359 
499 
461 
45,  59 
546 
444,  474 


133 
597 
778 
609 
736 
360 
345 
506 
776 
66,  67 
86,  194,  195, 
315,  316 
636 
489 
360,  435 
615 
593 
461 
358 
243 
296,  399 
605 
444 
289,  449 
730 
655,  656 
363 
199, 301 
631 
539 
458 
613 
543 


Ix 


XXVI 


TABLE   OF   CASES   CITED. 


Wilson  V.  Edwards 
T.  Ehvood 
V.  Greer 
V.  Ilansoa 
v. Ilorne 
V.  Lorame 
V.  Nations 
V.  Pearson 
■V.  Potty 
V.  Rastall 
V.  Kobertson 
V.  Steamboat 
V.  Tatum 
V.  Terry 
Willson  V.  Whitfield 
Windham  v.  Kendall 

V.  Williams 
Windwart  v.  Allen 
Winfiekl  v.  State 
Wing  V.  Gray 
V.  Owen 
Wingate  v.  Haywood 
Winkley  v.  Foye 
Winn  V.  Young 
Winnie  v.  Grayson 
Winona  v.  Waldron 
Winshell  v.  Latham 
Winship  v.  Buzzard 
Winslow  V.  Draper 
Winter  v.  Norton 
V.  Peterson 
V.  Phelan 
Wintz  V.  3Iorrison 
Wires  v.  Farr 
AViswell  V.  Munroe 
Witcher  v.  Shattuck 
Witherell  v.  Goss 
«.  Jlaine 
Withers  v.  Butts 
Witherspoou  v.  Cain 

V.  Wallis 
Wits  V.  Polehamptou 
Wittick  V.  Traun 
Wolcott  V.  Smith 
Wolf  «.  Horton 
V.  Parham 
V.  State 
Wolfe  V.  Knotts 
Wolfran  v.  Eyster 
Wood  V.  Barker 
V.  Brown 
V.  Cox 
V.  Cruismau 
V.  Figard 
V.  Gibbs 
V.  Goss 
«.  Gunston 


PAGE 

PAGE 

7r,8 

Wood  V.  JIcGuire 

375 

433 

V.  Ostrani 

128 

80 

V.  Steamboat 

265 

335 

V.  Stoddard 

190 

4C,2 

Woodbeck  v.  Keller 

363 

273 

Woodbury  v.  Obear 

375 

4o8 

V.  Taylor 

336 

34.-) 

Woodcock  V.  Nuth 

448 

739 

Woodman  v.  Dana 

427 

14 

254 

V.  Valentine 

98 

593 

Woodruff  V.  Bacon 

635 

661 

39 

V.  Chapin 

624 

125 

«. IIuisou 

389 

270 

V.  Luffin 

36 

318 

V.  Richardson 

583 

504 

Woods  V.  Hynes 

143 

134 

V.  Rowan 

168 

001 

Woodson  V.  Scott 

567 

469 

Woodward  «.  Blanchard 

340 

343 

V.  Eades 

575 

21 

V.  Payne 

490 

599 

V.  Whitescarver 

706 

411 

Worcester  v.  Harding 

348 

553 

Wormley's 

230 

613 

Wrey  v.  Thorn 

173 

413 

Wright  V.  Alexander 

510 

272 

V.  Antrim 

65 

311 

V.  Bonta 

103 

233, 

234 

r.  Bovnton 

384 

345 

V.  Cai-illo         371 

451 

502 

854 

V.  Clark 

263 

48 

V.  Cumpsty 

48 

279 

297 

v.  Eaton 

591 

674 

■y.  Georgia 

11, 

358 

677 

V.  Greenwood 

449, 

499 

269 

V.  Haddock 

'^i, 

560 

769 

V.  Hester 

150 

88, 

345 

D.  Mattison 

311 

501 

V.  Milbank 

81 

398 

■V.  Sharp 

83 

726 

V.  State    179,  238, 

495, 

505 

524, 

542 

V.  Talham 

54 

146 

Wurtz  V.  Walton 

495 

41 

Wyatt  V.  Steel 

89 

531 

Wycth  V.  Richardson 

19 

757 

Wyley  v.  Stanford 

325 

447 

Wylie  V.  Cox 

762 

20 

Wylly  V.  King 

59 

149, 

151 

Wyman  v.  Wood 

35 

434 

Wyndham  v.  Williams 

134 

106 

Wyuehamer  v.  People  77, 

114, 

115 

488 

Wyuu  V.  Bellas 

633, 

655 

610 

V.  Harman 

724 

256 

260, 

396 

Y. 

671, 

672 

583 

Yale  V.  Yale 

445, 

471 

TABLE   OF   CASES   CITED. 


Yancy  v. Fcn^ick 
Yanez  v.  State 
Yantcs  v.  Bimlett 

Yarborougli'y.Arool'i 
D.Tate 
V.  Tlie  State 
Yate  V.  Swaine 
Yater  v.  Huden 
Yates  v.Aldeu 

t^.  Brackenridge 
t).  Monroe 
•0.  State 
V.  The  People 
Yeaton-y.  U.  S. 
Yeldell  «.  Sbuiliolster 
Yelton  V.  Hawkins 
Yonge  i^.  The  Mutual,  &c 
Yon^ue  v.  BUlups 
Youno-  «•  Beardsley 
°«.Cbamberlm 
«.  Davis 


pageI 
609 
529,  540 
593 
406 
296,  468 
710 
533 
530 
853 
274,  278 
105 
623 
021 
737 

9'>9 


Young  V.  Dendy 

V.  Englehara 
D.Gibson 
V.  Ilairston 
1).  Mason 
D.  Mortens 
v.  Silkwood 
V.  Spencer 


Ixxvii 

PAGE 
576 
494 
400 
568 
758 
737 
473 
856 


350,  377,  384 

43 

445 

413 


Zabriskie  v.  Smitli 
Zei"-ler  -y.  Braddy 
°       V.  Scott 

V.  "Wells  „-- 

7pmr>  V  Wilmington,  &c.     ,     ^^^ 
Zhnnre;iy«.RoadComin.ss.oners^ 

Zimmerman  «.Marcblaud        6,^5 
Zulueta«.  Vinent 


THE 


LAW  OF  NEAV  TRIALS. 


THE  LAW  OF  NEW  TRIALS. 


CHAPTER  I. 


DEFINITION,  &c.,  OF  NEW  TRIAL. 


1.  Definition. 

2.  History. 

4.  Importance. 

6.  Mode  of  obtaining;  discretion; 
appeal ;  error,  &c. 


16.  Form  of  proceeding  ;  rule 
to  show  cause  ;  bill  of  exceptions, 
&c. 

17.  Other  forms  of  rehearing. 
24.  Habeas  corpus. 


§  1.  A  NEW  trial  is  defined  to  be  a  re-examination  of  an 
issue  in  fact,  before  a  court  and  jury,  which  had  been 
tried,  at  least  once,  before  the  same  court  and  jury}  On 
the  other  hand,  Blackstone  says:  "  If  any  defect  of  justice 
happened  at  the  trial,  by  surprise,  inadvertence,  or  mis- 
conduct, the  party  may  have  relief  in  the  court  above,  by 
obtaining  a  new  trial."^(«) 


'  Bouv.  Law  Diet.;  Wharton's 
Law  Diet. 


2  3  Bl.  Comm.  (Sharsw.)  386. 


(a)  In  practice,  in  Hie  United  States,  the  italicized  clauses  of  these 
definitions  are  often  departed  from ;  a  court  above  frequently  ordering 
the  cause  to  be  tried  anew  at  its  own  bar  ;  and,  on  the  other  hand,  the 
same  court  in  which  the  cause  was  tried  often  having  power  to  set  aside 
the  verdict  and  order  a  new  trial.  The  subject  is  very  generally  regu- 
lated by  express  statute.  A  verdict  cannot  be  set  aside  where  no  irre- 
gularity or  error  is  shown,  and  where  it  is  in  accordance  with  and  justi- 
fied by  the  evidence.  Scott  v.  Haines,  4  Nev.  426  ;  Goodall  v.  Batchel- 
der,  17  N.  H.  386.  Nor  to  enable  the  defendant  to  plead  matter  in 
discharge  which  has  arisen  since.  17  N.  H.  386.  A  court  is  not  bound 
to  grant  a  new  trial,  although  both  parties  desire  it.  Aiken  v.  Bruen. 
21  Ind.  137.  Nor  in  order  that  both  parties  may  be  heard  to  better  ad- 
vantage, and  the  principles  involved  more  carefully  considered.    Parsons 


2  THE    LAW    OF   NEW    TRIALS.  [CH.  1. 

§  2.  It  is  said,  "  tlic  origin  of  the  practice  of  granting 
new  trials  is  concealed  in  the  night  of  time.''^  The  grounds 
for  new  trial,  enumerated  by  Coniyns,(rt)  are  want  of 
proper  notice  of  trial;  "if  the  judge  certifies  the  verdict 
to  be  contrary  to  the  evidence ;  or  if  he  allowed  what  was 
not,  or  denied  what  was,  good  evidence ;  if  the  party  was 
disappointed  of  evidence  by  sickness,  or  other  accident, 
without  his  default;  or  the  witnesses  or  counsel  were 
absent  by  surprise;  if  a  juror  declared  a  design  to  give  a 
verdict  for  one  of  the  parties  before  the  trial.  But  there 
shall  not  be  a  new  trial  on  account  of  the  absence  of  a 
witness  whom  the  party  might  have  had  without  his 
neglect.  Nor  after  two  verdicts  for  the  same  party,  with- 
out proof  of  practice  (6)  nor  upon  an  indictment  or  in- 
formation, where  the  defendant  is  acquitted,  though  con- 
trary to  the  direction  of  the  judge,  without  proof  of 
practice;  nor  where  the  action  is  rigorous,  as  for  not 
taking  care  of  his  fire,  &c. ;  nor  after  an  indictment  for  a 
capital  offence;  or  for  perjury,  though  the  witnesses  were 
absent  by  practice;  or  in  quo  warrcmto,  where  the  defendant 
is  acquitted.  It  shall  not  be  in  an  inferior  court ;  nor 
shall  be  for  want  of  notice,  if  the  defendant  made  a  de- 
fence; nor  shall  be,  where  the  verdict  is  with  the  right; 
nor  after  an  interlocutory  judgment,  nor  usually  in  an 
action  for  words  or  ejectment;  nor  after  a  motion  in  arrest 
of  judgment,   or  a   trial   at   bar."^     Blackstone   says:^ 

'  Bouv.  Law  Diet.  ^  3  Bl.  Comm.  388. 

*  5  Com.  Dig.  Pleader  R.  17. 


V.  Thrasher,  37  Ga.  694.  A  motion  for  a  new  trial,  or  in  arrest  of  judg- 
ment, is  not  the  proper  method  of  raising  the  question,  as  to  the  allow- 
ance of  interest  on  a  verdict  to  the  date  of  the  judgment.  Groves  v.  Ruby, 

24  Ind.  418. 

(a)  Whose  Digest  is  termed  by  Chancellor  Kent  "  the  best  digest  ex- 
tant upon  the  entire  body  of  the  English  law."     1  Kent,  509. 

(&)  A  favorite  term  of  the  old  law  writers,  e(iuivalent  to  fraud  or 
artifice,  or  the  "  any  indirection"  of  Shakspeare. 


CH.  I.]  DEFINITION,    ETC.,    OF   NEW    TRIAL.  3 

"There  are  instances  in  the  year-books  of  the  reigns  of 
Edward  III.,  Henry  IV.,  and  Henry  VII.,  of  judgments 
being  stayed  even  after  a  trial  at  bar,  and  new  venires 
awarded,  because  the  jury  had  eat  and  drank  without 
consent  of  the  judge,  and  because  the  plaintiff  had  pri- 
vately given  a  paper  to  a  juryman  before  he  was  sworn. 
And  upon  these,  the  Chief  Justice  Glynn,  in  1655, 
grounded  the  first  precedent  that  is  reported  in  our  books 
for  granting  a  new"  trial  upon  account  of  excessive  damages. 
A  few  years  before,  a  practice  took  rise  in  the  Common 
Pleas,  of  granting  new  trials  upon  the  mere  certificate  of 
the  judge,  unfortified  by  any  report  of  the  evidence,  that 
the  verdict  had  passed  against  his  opinion;  though  Chief 
Justice  Rolle  (who  allowed  new  trials  in  cases  of  mis- 
behavior, surprise,  or  fraud,  or  if  the  verdict  was  noto- 
riously contrary  to  evidence)  refused  to  adopt  that  practice 
in  the  Court  of  King's  Bench.  And  at  that  time  it  was 
clearly  held  for  law,  that  whatever  matter  was  of  force  to 
avoid  a  verdict  ought  to  be  returned  upon  the  postea.,  and 
not  merely  surmised  by  the  court ;  lest  posterity  should 
wonder  why  a  new  venire  was  awarded,  without  any 
sufiicient  reason  appearing  upon  the  record.  But  very 
early  in  the  reign  of  Charles  II.,  new  trials  were  granted 
upon  affidavits ;  and  the  former  strictness  of  the  courts  of 
law^,  in  respect  of  new  trials,  having  driven  many  parties 
into  courts  of  equity  to  be  relieved  from  oppressive  ver- 
dicts, they  are  now  more  liberal  in  granting  them;  the 
maxim  at  present  adopted  being  this,  that  (in  all  cases  of 
moment)  where  justice  is  not  done  upon  one  trial,  the 
injured  party  is  entitled  to  another. "(«) 

§  3.  Mr.  Graham  remarks:  "As  early  as  1351,  a  venire 
de  novo  w^as  directed  for  the  misbehavior  of  the  jury.     A 

(a)  The  ruling  of  the  court  upon  a  demurrer  cannot  be  assigned  as  a 
reason  for  a  new  trial,  nor  can  such  ruling  be  reviewed  by  the  Supreme 
Court  in  connection  with  such  a  motion.  Cincinnati.  &c.,  R.  R.  Co.  v. 
Washburn,  25  Ind.  259. 


4  THK    LAAV    OF    NEW    TRIALS.  [CII,   I. 

second  instance  is  found  in  tlie  year-books  about  1410, 
occasioned  by  the  misconduct  of  the  prevailing  party  in 
tam})ering  with  the  jury.  During  a  period  of  about  250 
years  that  succeeded,  scarcely  a  vestige  of  the  practice  of 
the  court  respecting  new  trials  remains. — Down  to  1598, 
whatever  was  alleged  as  cause  for  a  new  trial  must  have 
appeared  of  record.  The  first  inroad  upon  this  practice 
was  made  by  the  Common  Pleas,  upon  certificate  of  the 
judge  that  the  verdict  passed  against  his  opinion.* — Rolle, 
J.,  held,  the  judgment  ought  not  to  be  stayed,  though  it 
had  been  done  in  the  Common  Pleas. — The  first  cause  in 
which  a  new  trial  is  reported  to  have  been  granted  on  the 
merits,  is  "Wood  v.  Gunston  in  1655,  after  a  trial  at  bar, 
in  a  case  of  slander,  and  on  the  ground  of  excessive 
damages.^ — Prior  to  this,  the  party  suffering  injustice  by 
a  verdict  might  resort  to  his  writ  of  attaint,  founded  upon 
an  allegation  of  perjury  in  the  jury  having  found  against 
law  or  evidence. — It  consisted  in  trying  the  jury  by  an- 
other jury  of  double  their  number,  wliose  verdict,  if  it 
falsified  the  former,  was  followed  by  infamy,  fine,  im- 
prisonment, forfeiture  of  goods,  with  other  severe  penal- 
ties.— In  cases  not  provided  for  by  attaint,  the  complain- 
ant was  compelled  to  resort  to  equity,  where  a  new  trial 
was  directed,  under  the  penalty  of  a  perpetual  injunction 
if  the  adverse  party  should  refuse."^ 

§  4.  With  regard  to  the  general  importance  of  the  right 
to  a  new  trial,  Lord  Mansfield  remarks:  "  It  is  absolutely 
necessary  to  justice  that  there  should,  upon  many  occa- 
sions, be  opportunities  of  reconsiderhig  the  cause  by  a 
new  trial."'  So  where,  in  an  action  brought  by  a  daughter 
against  her  mothei*  for  confining  her  two  or  three  hours, 
the  jury  gave  a  verdict  for  2000/.  damages;  in  ordering  a 
new  trial.  Holt,  C.  J.,  said:  "The  jury  were  shy  of  giving 
their  reason  for  their  verdict,  thinking  they  had  an  abso- 

•  Slade'3  Case,  Style,  138.  »  Graham  ou  N.  T.  Introd.  2. 

2  Style,  460.  "  Bright  v.  Eyuon,  1  Burr.  390. 


CH.  I.]  DEFINITION,   ETC.,   OF   NEW    TRIAL.  5 

lute  power  to  find  it  as  they  pleased:  this  is  a  mistake, 
for  the  jury  are  to  try  the  cause  with  the  assistance  of  the 
jiidge.''^  And,  in  a  late  case  in  New  York,  the  remarks 
of  the  court  well  illustrate  the  value  of  this  privilege. 
"The  jury  have  not  had  the  best  means  of  arriving  at 
the  truth  ;  the  plaintiffs  have  been  deprived  without  their 
fault  of  a  very  important  piece  of  evidence  differing  in 
character  from  that  which  they  gave  upon  the  trial,  and 
are  now  able,  by  this  newly-discovered  evidence,  to  re- 
move a  very  just  ground  of  suspicion  that  rested  upon 
their  case.  The  case  is  important  in  amount,  and  in  its 
result  involves  the  character  of  the  principal  witness. 
The  granting  of  a  new  trial  does  not  reflect  upon  the 
merits  of  the  defence,  as  it  does  not  touch  the  merits  of 
the  action ;  and  if  the  signature  of  the  defendant  has 
been  forged,  the  production  of  the  note  will  enable  him 
to  prove  it,  most  clearly,  while  to  refuse  the  new  trial 
would  be  to  exclude  the  very  best  evidence  of  which  the 
case  is  susceptible."^ 

§  5.  But,  on  the  other  hand,  it  is  said :  "  Courts  should 
be  very  cautious  how  they  overthrow  verdicts  that  have 
been  given  by  twelve  men  upon  their  oaths."^  "It  would 
be  extremely  mischievous,  if  a  verdict  could  be  set  aside, 
because  the  court  may  think  that  the  judge,  who  pre- 
sided at  the  trial,  has  laid  too  much  or  too  little  stress 
upon  this  or  that  part  of  the  case.  If  it  were  so,  the 
number  of  new  trials,  which  are  a  reproach  to  the  law, 
would  be  greatly  increased.  There  can  hardly  be  a  greater 
evil  in  the  administration  of  justice,  than  the  expense 
and  delay  to  which  suitors  are  occasionally  exposed  from 
the  necessity  of  setting  right  those  errors  which  some- 
times unavoidably  occur  on  the  trial  of  a  cause."* 

'  Ash  V.  Ash,  Comb.  357.  Allen,  2   Wils.  160.     See  Field  v. 

2  Per  Allen,  J.,  Piatt  v.  Munroe,     Campbell,  17  La.  An.  30. 

34  Barb.  297-8.  ^  Per   Maule,   J.,  Doe  v.  Strick- 

3  Per  Wilmot,  C.  J.,  Leeman  v.     laud,  8  Man.  G.  &  Sc.  742. 


6  THE    LA"\\"    OF    NEW    TRIALS.  [CH.  T. 

§  6.  Notwithstanding  the  general  rules  on  the  subject, 
above  stated  (§  2),  it  is  said  to  be  "  diflieult  to  draw  a  line 
as  to  the  granting  of  a  new  trial;  and  i>erliaps  the  grant- 
ing or  not  granting  of  it  must  always  depend  upon  the 
circumstances  of  the  case."'(rt)  Also,  "that  the  granting 
of  a  new  trial,  like  the  granting  of  a  continuance,  or 
taking  off  a  default,  rests  in  the  discretion  of  the  court, 
is  fully  established  by  all  the  authorities."^     And,  in  an- 

'  Per  Gould,  J..  Francis  v.  Ba-  ^  Per  "Wilde,  J.,  Graj'  r.  Bridge, 

ker.  r,  Bac.  Abr.  G64.     See  Easter-  11    Pick.    18'J.       Ace.   Waters    v. 

Yinix  V.  Power,  12  Cal.  88  ;  Laufear  AVatcrs,  2C  Md.  53. 
V.  Harper,  16  La.  An.  383. 

(a)  The  right  is  said  to  be  liberally  construed  on  feigned  issues. 
"Waddams  v.  Humphrey,  22  111.  G61.  Sometimes,  by  statute,  in  questions 
of  real  estate,  a  new  trial  is  granted  as  matter  of  right.  Ewing  v.  Gray, 
12  Tnd.  64  ;  Walker  v.  Armour,  22  111.  G.o8.  The  court  will  not  reverse 
au  order  f^ranting  a  new  trial  in  an  action  to  recover  real  property,  as 
being  an  abuse  of  the  discretion  conferred  on  the  District  Court  by  Rev. 
?  3584,  where  it  does  not  appear  that  the  negligence  of  the  unsuccessful 
party  or  his  attorney  pi'oduced  the  result,  although  they  may  not  have 
been  entirely  without  blame  in  that  particular,  and  the  reversal  is  sought 
on  the  ground  of  such  negligence.  White  v.  Poorman,  24  Iowa,  108. 
In  Indiana,  a  motion  for  a  new  trial,  in  an  action  to  recover  possession  of 
real  property,  need  not  be  in  writing.  Zimmerman  v.  Marchlund,  23 
Ind.  474.  The  provision  of  (Minnesota)  Pub.  Sts.  c.  64,  §  5,  p.  .595, 
"  that  any  person  against  whom  a  judgment  for  the  recovery  of  specific 
real  property  is  rendered,  may,  .  .  .  upon  the  payment  of  all  costs  and 
damages  recovered  thereby,  demand  another  trial,"  does  not  apply  to  the 
plaintiff  in  ejectment.  Howes  v.  Gillett,  10  ^liii.  397.  Sect.  574  of  the 
(Kansas)  Civil  Code,  authorizing -a  new  trial,  of  course,  in  certain  cases, 
does  not  apply  to  a  petition  for  partition.  Swartzel  v.  Rogers,  3  Kans. 
374.  Sect.  601  of  the  (Indiana)  Code  (2  G.  &  H.  283),  which  allows  a 
new  trial  as  of  right  in  actions  to  recover  possession  of  real  property, 
&c.,  does  not  apply  to  suits  for  the  specific  perfornumce  of  contracts  for 
the  conveyance  of  land.  Walker  v.  Cox,  25  Ind.  271.  It  is  held  that  a 
new  trial  will  not  l)e  granted  in  cases  sounding  in  damages,  unless  par- 
tiality, &c.,  be  shown.  Terre,  &c.  v.  Vanatta,  21  111.  108.  Nor  for 
irregidar  continuances.  Huntsman  v.  Jarvis,  17  Tex.  161.  In  South 
Carolina,  new  trials  will  more  readily  be  granted  in  appeals  from  the 
ordinary  on  the  probate  of  wills  and  upon  questions  of  location,  than  in 
other  cases  involving  questions  of  fact.  Watkius  v.  Watkins,  13  Rich. 
66. 


CII.  I.]  DEFINITION,   ETC.,   OP   NEW    TRIAL.  7 

other  case,  "  an  infinite  variety  of  considerations,  which 
can  never  be  brought  to  the  test  of  a  strict  rule,  and 
which  must  be  referred  to  the  discretion  of  the  judge,  are 
the  basis  of  determination."' 

§  7.  It  is  sometimes  held,  in  conformity  with  this 
general  theory,  of  discretion,  that  the  granting  or  refusing 
of  a  new  trial  cannot  be  assigned  as  error,  nor  be  made 
the  ground  of  ajjpeal  or  certiorari.^  Thus  a  motion  for 
a  new  trial  either  in  a  criminal  or  civil  case,  on  the 
ground  that  the  verdict  is  against  evidence  or  the 
weight  of  evidence,  is  addressed  to  the  discretion  of  the 
court  to  which  it  is  made,  and  its  decision  cannot  be  re- 
viewed.-^a)  So  no  exception  lies  to  the  decision  of  the 
court  below,  overruling  a  motion  made  for  a  new  trial  on 
the  ground  of  the  alleged  interest  of  a  juror.  (In  this 
case,  the  decision  is  predicated  upon  the  ground  that  the 
question  was  one  of  fact.  The  point  of  discretion  is  left 
undecided.)'*  So,  where  a  new  trial  has  been  granted,  on 
the  ground  that  the  jury  were  misled  by  the  instructions 
of  the  court,  the  Supreme  Court  will  not  interfere.^  More 
especially,  if  no  motion  for  a  new  trial  be  made  in  the 
court  below,  neither  the  action  of  the  court  in  giving  or 
refusing  instructions,  or  admitting  or  excluding  evidence, 

'  Per  Hosmer,   C.  J.,  White  v.  Carter  v.  Bennett,  4  Florida,  283  ; 

Trinity     Church,    5    Conn.    187  ;  Steinman  v.  Tolivar,  13  Mis.  590  ; 

Marsh  v.  Webber,  13  Miu.  109.  Eii^^s  v.  Savage,  4  Gihii.  129. 

2  Sweeney  v.  Jarvis,  G  Tex.  36  ;  ^  Holiday  v.  People,  4  Gilm.  Ill; 

Houghton  ».' Slack,  10  Verm.  520;  Long  v.  Gantley,   4  Dev.  &  Batt. 

State  Bank  v.  Hunter,  1  Dev.  100  ;  313. 

Com.  «.  Manson,  2  Ashm.  31  ;  San-  *  Kinnicutt  v.  Stockwell,  8  Cush. 

ford,  &c.  V.  Wiggin,  14  N.  H.  441  ;  73. 

Gant  V.  Hunsucker,  12  Ired.  254;  ^  Reeves  «.  Royal,  1  Greene,  451. 

(a)  It  is  held  in  Massachusetts  to  be  a  matter  of  discretion  with  the 
judge,  whether  to  report  the  evidence^  as  the  foundation  of  a  motion  for 
a  new  trial.  Miller  v.  Baker,  20  Pick.  28.5.  (Judge  Shaw,  in  this  case, 
gives  an  elaborate  view  of  the  nature  and  history  of  new  trials,  more 
particularly  for  the  reason  that  the  verdict  is  against  evidence.) 


8  THE    LAW    OF    NEW    TRIALS.  [CIL  I. 

nor  of  the  jury  in  finding  the  verdict,  will  be  considered 
by  the  Supreme  Court. ^  And  if  the  finding  of  the  jury 
is  in  conformity  with  the  charge  of  the  court,  and  no 
com})laint  made  of  the  charge,  the  refusal  to  grant  a  new 
trial  will  not  be  reversed,  although  the  law  may  not  have 
been  properly  submitted,  the  corrective  court  being  satis- 
fied with  the  verdict.^  So  a  refusal  to  grant  a  new  trial, 
on  the  ground  that  the  motion  was  not  made  in  time,  is 
a  decision  not  revisable  on  error.^  So,  on  a  motion  for  a 
new  trial,  a  brief  of  the  evidence  had  been  agreed  on  by 
counsel,  and  filed  in  the  clerk's  office  at  the  term  of  the 
court  at  which  the  rule  nisi  was  granted,  but  such  agree- 
ment was  not  entered  on  the  minutes  of  the  court  at  that 
term.  Held,  on  a  motion  to  dismiss  the  rule  nisi  for  a 
new  trial,  on  that  ground,  at  a  subsequent  term  of  the 
court,  the  Supreme  Court  would  not  control  the  discretion 
of  the  court  below,  in  ordering  the  agreement  to  be  en- 
tered on  the  minutes,  nunc  pro  tunc^ 

§  8.  The  qualification,  however,  as  already  suggested,  is 
sometimes  added,  that  the  power  of  revision  will  be  used 
with  great  caution,  and  not  unless  the  court  has  grossly 
abused  its  discretion.^  Or  unless  it  is  made  to  appear  that 
the  court  did  not  exercise  a  sound   discretion. "(a)      Or 

'  Rhodes  v.  White,  11  jMis.  G23  ;  41  ;  Carter  v.  Carter,  5  Tex.  93  ; 

Lyle  V.  White,  11  Mis.  624.  Powers  v.  Bridges,  1    Iowa,  235  ; 

2  The  Mayor,  &c.  v.  Howard,  6  Telft  v.  Marsh,  1  West  Va.  38. 
Geo.  213.  <^  Parrott  v.  Underwood,  10  Tex. 

3  Ililliard  v.  Carr,  G  Ala.  557.  48  ;  Bylieer  v.  Kinncte,  G  Jlis.  53  ; 
»  Hardin  v.  Tlie  Inferior  Court,     Jones  v.  Jones,  4  Blaclcf.  140  ;  Qui- 

10  Geo.  ii3.  uroti.  Kenyon,  22  Cal.  82  ;  McKay 

''  Hooe  V.  Lockwood,  3   Chand.     v.  Thoringtou,  15  Iowa,  25. 

(ffl)  In  Kentucky,  the  Court  of  Appeals  will  sometimes  refuse  to  reverse 
a  judgment  granting  a  new  trial,  where  there  has  been  afterwards  a  full 
and  fair  trial,  and  the  party  at  whose  instance  it  was  granted  has  been 
successful,  though  the  Court  of  Appeals,  upon  the  ground  made,  would 
not  have  reversed  the  judgment  for  a  refusal  to  grant  a  new  trial.  Cald- 
well V.  Wright,  8  B.  Mon.  525.  'I'lie  Hupreme  Court  of  Missouri  will 
not  disturb  a  verdict  of  the  Circuit  Court,  unless  a  new  trial  has  been 


en.  I.]  DEFINITION,    ETC.,   OP   NEW    TRIAL.  9 

(where  the  ground  is  that  the  verdict  is  against  evidence) 
except  in  a  very  flagrant  case.^     Or  unless  the  judgment 

'  Lackey  v.  Lane,  7  Mis.  230. 
« 

asked  in  the  latter,  and  improperly  refused.  Polk  v.  The  State,  4  Mis. 
544.  The  power  of  the  Circuit  Court  of  Missouri,  in  granting  new  trials, 
is  subject  to  be  reviewed  by  the  Supreme  Court  and  its  judgment  therein 
reversed.  Hill  w.  Wilkins,  4  Mis.  86.  It  must  be  a  clear  case  to  justify 
the  reversal  of  a  decision  refusing  a  new  trial.  Bobbs  v.  Lambdin,  7 
Mis.  601.  In  North  Carolina,  where  it  appears,  from  the  record  sent  up, 
that  on  the  trial  below  a  question  of  law  was  reserved  by  the  court,  to 
which  the  verdict  was  subject,  and  that  question  was  decided  in  favor  of 
the  appellee,  the  verdict  set  aside  and  a  nonsuit  ordered,  but  the  judge 
fails  to  state  what  the  question  was ;  there  must  be  a  venire  de  novo. 
Brown  v.  Kyle,  2  Jones,  442.  In  Ohio,  the  denial  of  a  motion  for  a  new 
trial  will  not  be  overruled,  when  the  motion  is  based  on  alleged  incompe- 
tency of  a  juror  who  had  expressed  an  opinion,  and  when  all  the  evi- 
dence which  was  before  the  court  upon  the  determination  of  the  motion 
is  not  before  the  Supreme  Court.  Cooper  v.  State,  16  Ohio  St.  328. 
When  no  reasons  for  granting  a  new  trial  are  assigned  in  the  motion 
therefor,  a  refusal  to  allow  it  cannot  be  assigned  as  error.  Hoffman  v. 
Gordon,  15  Ohio  St.  211.  In  Massachusetts,  an  order  of  the  Court  of 
Common  Pleas,  granting  a  review,  or  allowing  an  amendment  of  a  peti- 
tion for  a  review,  is  subject  to  revision  in  the  Supreme  Judicial  Court,  on 
exceptions.  This  decision  proceeds  upon  the  ground,  that,  although  the 
court  below  is  invested  by  statute  with  discretionary  power  to  grant  a 
review,  yet  questions  of  law,  like  that  of  amendment,  may  be  involved 
in  the  decision,  and  by  another  statute  exceptions  are  authorized  to  all 
decisions  whatever  in  matter  of  law.  Davenport  v.  Holland,  2  Cush.  1. 
In  Texas  the  court  established  a  rule,  for  all  future  cases,  that  a  new 
trial  would  not  be  granted  by  the  Supreme  Court,  on  the  ground  that 
the  verdict  was  not  supported  by  the  testimony,  unless  there  had  been  a 
motion  for  a  new  trial  in  the  court  below ;  although,  on  account  of  the 
different  practice  which  had  before  prevailed,  the  rule  was  not  applied  to 
cases  which  had  been  already  decided  by  the  courts  below.  Foster  v. 
Smith,  1  Tex.  70  ;  Reynolds  v.  Williams,  1  Tex.  311.  See  Wampler  v. 
Walker,  28  Tex.  598.  A  cause  will  not  be  remanded  for  a  new  trial, 
upon  a  motion  made  more  than  five  years  after  the  rendition  of  the  judg- 
ment in  the  court  below,  for  the  reason  that  the  statement  of  facts  was 
not  sent  up  in  the  transcript  of  the  record,  and  has  been  lost.  Dewees 
V.  Hudgeons,  1  Tex.  192.  Where  a  motion  is  made  for  a  new  trial  in 
the  court  below,  on  the  ground  that  the  charge  of  the  court  was  disre- 


10  THE    LAW    OF   NEW    TRIALS.  [CII.  I. 

appears,  from  tlu!  record,  or  a  statement  of  the  facts  proved 
at  the  trial,  or  a  review  of  all  the  testimony,  to  be  erro- 


garded  by  the  jury,  and  the  motion  is  refused,  it  will  be  presumed,  on 

appeal,  that  the  charge  was  not  disregarded  by  the  jury,  unless  there  is 
evidence  to  the  contrary.     Ashcroft  v.  Pouns,  1  Tex.  594.     A  motion 
for  a  new  trial  was  made,  on  the  ground  "that  one  of  the  jurors,  when 
asked  under  oath,  by  the  counsel  for  the  defence,  if  he  had  attended  the 
trial  or  licard  the  evidence  at  the  trial  of  defendant  liefore  the  examining 
court,  replied,  '  that  he  had  not  been  present  at  the  trial,  and  had  not 
heard   any  portion  of  the    evidence  in   the  case,'  and  that    defendant 
can  now  prove  by  certain  witnesses  that  the  juror  was  present  at  the 
trial,  and  within  hearing  of  the  proceedings  of  the  court  as  an  auditor." 
The  record  failed  to  show  what  occurred  on  the  examination  of  the  juror 
touching  his  qualifications  or  the  action  of  the  court,  except  that  a 
motion  for  a  new  trial  was  overruled.     Held,  the  court  would  revise  the 
ruling  of  the  lower  court.     Shaw  v.  State,  27  Tex.  750.     In  Tennessee, 
it  is  no  error,  to  refuse  to  postpone  a  motion  for  a  new  trial,  for  the  pur- 
pose of  procuring  a  witness,  respecting  the  purport  of  whose  testimony 
there  was  a  misunderstanding  between  the  attorneys.     Miller  v.  Roger, 
9  ITumph.  281.     In  that  State,  when  there  is  no  evidence  to  sustain  a 
verdict,  it  is  error  to  refuse  a  new  trial.     Davidson  v.  Manlove,  2  C'old. 
346.     In  South  Carolina,  in  an  action  of  trover  for  a  negro,  the  defend- 
ant relied  on  a  gift,  and  the  jury  found  for  the  plaintiff  against  the 
opinion  of  the  presiding  judge.     While  an  appeal  was  pending,  a  different 
judge  sustained  the  gift,  in  an  action  for  other  property  embraced  in  it. 
Under  these  circumstances,  a  new  trial  was  granted  in  the  first  case. 
Began  v.  White,  Dudley,  S.  C.  87.     In  New  York,  where  a  party  in- 
tends to  appeal  from  the  decision  of  the  circuit  judge,  granting  or  re- 
fusing a  new  trial,  an  order  to  stay  the  proceedings  must  be  obtained 
within  eight  days  after  the  making  and  signing  the  decision.     Trceling 
V.  Seeley,  22  Wend.  629.     In  Vermont,  a  motion  for  a  new  trial  is  ad- 
dressed to  the  discretion  of  the  court  below,  and  their  decision  of  it  can- 
not be  revised  on  exceptions,  but  only  by  petition  for  a  new  trial.     Shel- 
don V.  Perkins,  37  Vt.  550.     In  Pennsylvania,  refusal  of  the  Court  of 
Oyer  and  Terminer  to  grant  a  new  trial  after  conviction  for  murder  is  an 
exercise  of  discretion  with  which  the  court  above  cannot  interfere,  even 
if  the  court  below  misapi)lied  its  own  rule  of  practice.     Ilowser  v.  Com- 
mon\v(>alth,  51  Penn.  332  ;  Durkholder  v.  Stahl,  58  Penn.  371.     In  the 
United  States  Supreme  Court,  no  "  exception"  lies  to  overruling  a  motion 
for  a  new  trial,  nor  for  entering  judgment.     Pomeroy  v.  State  Bank,  1 
Wall.  592 ;  Labor  v.  Cooper,  7  Wall.  565.     In  California,  a  judgment 
cannot  be  reviewed  on  appeal  from  an  order  denying  a  now  trial,  on  the 


CII.  I.]  DEFINITION,    ETC.,    OF   NEW    TRIAL.  11 

neous.^     Or  unless  the  reasons  and  evidence  for  a  new  trial 
appear  of  record,  and  come  within  recognized  rules  of 

'  Lloyd  V.  McCluro,  3  Greene,  139  ;  Porter  v.  Hanley,  5  Eng.  186. 


ground  of  a  defective  complaint,  or  that  the  judgment  was  not  warranted 
by  the  findings.  Jenkins  v.  Frink,  30  Cal.  586.  When  a  lower  court 
has  denied  a  new  trial,  the  court  above  will  not  examine  conflicting  testi- 
mony, to  determine  whether  the  denial  was  right.  Preston  v.  Keys,  23 
Cal.  193.  An  order  granting  a  new  trial  will  not  be  set  aside,  because 
the  lower  court  erred  in  regard  to  the  exact  question  on  which  the  order 
was  made,  provided  there  is  any  other  ground  which  justifies  it.  Bolton 
V.  Stewart,  29  Cal.  615;  Grant  v.  Moore,  ib.  644;  Coghill  v.  Marks,  ib. 
673.  A  motion  to  dismiss  an  appeal  from  an  order  denying  a  new  trial 
will  be  sustained  by  the  Supreme  Court,  where  the  statement  has  not 
been  agreed  to  by  the  respective  parties,  or  settled  and  authenticated  by 
the  court  below,  although  the  motion  was  submitted  to  that  court  without 
a  statement  by  the  consent  of  the  appellee.  Cosgrove'v.  Johnson,  30 
Cal.  509.  An  appeal  from  an  order  refusing  a  new  trial,  although  not 
taken  within  one  year  after  judgment,  brings  up  the  whole  record,  and 
the  court  above  has  a  clear  right  to  order  a  new  trial,  the  efi'ect  of  which 
is  to  vacate  the  judgment.  Walden  v.  Murdock,  23  Cal.  540.  In 
Georgia,  the  correctness  of  a  verdict  will  not  be  questioned  in  the  Su- 
preme Court,  unless  a  motion  for  a  new  trial  has  been  made  in  the  court 
below.  Wright  v.  Georgia,  34  Ga.  330 ;  Fish  v.  Van  Winkle,  ib.  339 ; 
Ellington  v.  Coleman,  ib.  425 ;  Crim  v.  Sellars,  37  ib.  324.  The  inter- 
ference, by  the  court  above,  with  the  discretion  of  the  court  below  in 
granting  or  refusing  a  new  trial,  is  made  a  duty  by  the  act  of  Feb.  20, 
1854.  Augusta  v.  Wellborn,  31  Ga.  365.  Under  §  2  of  the  ordinances 
of  the  convention  of  1865,  a  jury  could  decide  an  action  upon  a  contract 
made  between  June,  1861,  and  June,  1865,  upon  general  principles  of 
equity;  and,  if  the  judge  who  presided  at  a  trial  refused  a  new  trial,  the 
Supreme  Court  would  not  readily  reverse  his  decision.  McJjaughlin  v. 
O'Dowd,  34  Ga.  485.  In  Mississippi,  the  court  above  will  not  notice  the 
action  of  the  court  below  in  overruling  a  motion  for  a  new  trial,  unless 
the  bill  of  exceptions  shows  that  judgment  of  the  court  to  have  been 
excepted  to.  Foudren  v.  Durfee,  39  Miss.  324 ;  Hicks  v.  Wilson,  24 
Ark.  628.  Under  the  statutes  of  Arkansas,  the  Circuit  Court  has  discre- 
tion whether  to  receive  a  motion  for  a  new  trial,  although  filed  after  the 
prescribed  time ;  and  the  Supreme  Court  would  be  slow  to  interfere  with 
this  discretion.  But  where  the  Circuit  Court  considered  the  statute  im- 
perative, the  Supreme  Court  may  direct  the  Circuit  Court  to  u.«;e,  but 
not  how  to  use,  its  discretion.     Gould  v.  Tatum,  21  Ark.  329.     Where  a 


12  THE    LAW    OF   NEW    TRIALS.  [CH.  I. 

law.'  As  a  general  rule,  the  Supreme  Court  will  always 
more  readily  control  the  discretion  of  tlie  court  below  in 

'  Jones  V.  Foiininiorc,    1    Iowa,     134;  Shaw  v.  Sweeney,  2  Greene 

(Iowa),  587. 

case  was  tried  entirely  upon  the  defendant's  testimony,  and  a  verdict  was 
rendered  against  him  by  a  jury  of  his  neighbors,  which  the  judge  who 
presided  at  the  trial  refused  to  set  aside  ;  the  Supreme  Court  declined  to 
interfere.  Thompson  v.  Patterson,  23  Ark.  159.  In  Kansas,  where  the 
record  docs  not  show  the  evidence  in  the  court  below,  on  a  petition  for  a 
new  trial,  the  Supreme  Court  will  presume  that  the  decision  was  based 
on  sunicient  evidence.  Kycndall  v.  Clinton,  3  Kans.  85 ;  Darrance  v. 
Preston,  18  Iowa,  396.  A  bill  of  exceptions  to  an  order  of  court  grant- 
ing a  new  trial  showed  that  the  court  gave  a  bad  reason  for  directing  a 
new  trial,  but  also  showed  that  the  motion  was  made  upon  several 
grounds,  which  were  suffkient  if  true.  Held,  the  action  of  the  court  be- 
low would  be  presumed  to  be  correct.  McCreary  v.  Cockrill,  3  Kans. 
37.  In  Nevada,  if  the  court  below  grants  a  new  trial  in  a  criminal  case 
because  it  is  satisfied  that  a  continuance  was  improperly  refused  the  de- 
fendant, the  court  above  will  not  overrule  the  decision.  State  v.  Salge, 
2  Nev.  321.  In  Oregon,  the  District  Court  and  Supreme  Court  have 
concurrent  jurisdiction  to  grant  new  trials ;  and  a  party  who  has  been 
refused  a  new  trial  by  one  cannot  obtain  it  from  the  other.  Newby  v. 
Territory,  1  Oreg.  163.  In  Michigan,  the  overruling  of  a  motion  for  a 
new  trial  cannot  be  reviewed  by  the  Supreme  Court.  Pennsylvania  v. 
Brady,  14  Mich.  260  ;  Final  v.  Backus,  18  Mich.  218.  Under  the  stat- 
utes of  Minnesota,  a  defendant,  after  conviction  upon  an  indictment,  may 
within  a  year  apply  directly  to  the  Supreme  Court  for  a  new  trial,  and 
that  court  may  grant  a  new  trial,  if  justice  has  not  been  done.  State  v. 
Heenan,  8  Minn.  44.  In  Maryland,  under  art.  5,  ?  16  of  the  code,  enact- 
ing that  "  in  all  cases  where  judgments  shall  be  reversed  or  affirmed  by 
the  Court  of  Appeals,  and  it  shall  appear  to  the  court  that  a  new  trial 
ought  to  be  had,  a  writ  of  procedendo  shall  issue,"  the  propriety  of  a 
new  trial  must  appear  from  the  record  before  the  court,  at  the  time  of 
the  reversal  or  affirmance  of  the  case.  McCann  v.  Sloan,  26  Md.  81. 
A  court  of  law  may  grant  a  new  trial  in  issues  transmitted  to  it  from 
the  Orphans'  Court.  Waters  v.  Waters,  26  Md.  53.  In  Louisiana,  a 
judgment  granting  a  new  trial  is  interlocutory,  and  no  appeal  lies.  Mc- 
Willie  V.  Perkins,  20  La.  An.  168.  In  Missouri,  whore  a  case  was  sub- 
mitted to  the  court  without  a  jury,  and  the  court  decided  that  the  plain- 
tiff was  not  entitled  to  recover,  and,  without  entering  judgment  of  record, 
continued  the  case,  and  permitted  the  plaintiff  to  amend  his  petition, 
and  at  a  subsequent  term  the  cause  was  tried  again ;  held,  the  action  of 


CH.  I.]  DEFINITION,   ETC.,   OP   NEW   TRIAL.  13 

refusing  a  new  trial,  than  in  granting  it,  for  the  reason 
that  the  refusal  to  grant  a  new  trial  operates  as  a  final 
adjudication  of  the  rights  of  the  parties.^ 

'  Oliver  v.   Pace,   6   Geo.    185 ;  1    Wash.   TeiT.  13  ;  McGregor  v. 

Shepherd  «.  Brenton,  15  Iowa,  84;  Christie,    37   Geo.  557;  White   v. 

Whitney  v.  Bhmt,  ib.  283  ;  McNair  Poorman,  24  Iowa,  108  ;  Eobinson 

V.  McComber,   ib.  3G8  ;   House  v.  v.  Bacon,  ib.  40'J. 
Wright,  23  Ind.  383;  Gore».  Moses, 


the  court  was  simply  an  exercise  of  the  power  to  grant  a  new  trial  and 
would  not  be  reviewed.  Simpson  v.  Blunt,  42  Mis.  542.  In  Iowa,  to  iu- 
.  terfere  with  the.decision  of  the  court  below  in  granting  a  new  trial,  the 
court  above  will  require  a  clearer  showing  of  abuse  of  judicial  discretion, 
or  legal  error,  than  it  would  to  reverse  a  refusal  of  a  new  trial.  Chapman 
V.  Wilkinson,  22  Iowa,  541.  An  order  of  an  inferior  court,  setting  aside 
a  verdict  as  against  the  evidence,  will  not  be  interfered  with  by  the  Su- 
preme Court,  unless  there  is  a  conclusive  preponderance  of  testimony  in 
favor  of  the  verdict.  Burlington  v.  Green,  21  Iowa,  335.  The  court 
below  having  granted  a  new  trial,  because  the  defendant  had  been  pre- 
vented by  accident,  and  without  negligence  on  his  part,  from  interposing 
a  good  defence ;  the  Supreme  Court  refused  to  interfere  on  the  ground 
of  newly-discovered  evidence,  as  the  statement  of  facts  in  the  defendant's 
affidavit  in  support  of  his  motion  for  the  new  trial  authorized  the  infer- 
ence that  there  had  been  no  abuse  of  discretion.  Sanders  v.  Clark,  22 
Iowa,  275.  Where  it  does  not  affirmatively  appear  that  all  the  evidence 
is  in  the  transcript,  the  presumption  is  that  the  court  below  had  sufficient 
evidence  to  sustain  its  order  granting  a  new  trial  upon  a  motion  therefor, 
on  the  ground  of  newly  discovered  evidence,  accident,  surprise,  and 
fraud.  Sawdon  v.  Craig,  21  Iowa,  580.  The  appellate  court  will  not 
interfere  with  the  granting  or  refusing  a  new  trial  upon  the  ground  of 
insufficient  evidence,  unless  the  whole  case  is  presented  by  the  record. 
Barker  v.  Brown,  15  Iowa,  70.  Nor  where  a  motion  for  a  new  trial,  on 
the  ground  that  the  instructions  to  the  jury  were  partly  written  and 
partly  oral,  alleged,  that  the  party  moving  supposed  at  the  time  that  the 
instructions  were  all  in  writing,  but,  as  soon  as  he  ascertained  the  fact, 
made  this  motion.  Head  v.  Langworthy,  15  Iowa,  235.  The  discretion- 
ary power  to  grant  a  new  trial,  given  by  the  county  court  act,  9  and  10 
Vict.  c.  95,  §  89,  is  not  interfered  with  by  the  141st  of  the  county  court 
rules,  made  under  sect.  12,  of  the  12  and  13  Yict.  c.  101,  which  is  merely 
a  directory  rule  of  practice.  Therefore,  notwithstanding  the  omission  to 
give  the  seven  days'  notice  required  by  such  rule,  the  judge  has  juris- 
diction to  entertain  an  application  for  a  new  trial.     Carter,  30  Eng.  Law 


14  THE    LAAV    OF   NEW    TRIALS.  [CII.  I. 

§  9,  The  following  remarks  of  eminent  judges  adopt 
this  restricted  view  of  judicial  discretion. 

§  9a.  "  That  power — to  set  aside  a  verdict — is  not  a 
matter  of  arbitrary  discretion,  but  must  be  exercised  in 
accordance  with  established  rules  and  the  settled  course 
of  the  court."' 

§  96.  "  Though  this  motion  for  a  new  trial  is  an  appli- 
cation to  the  discretion  of  the  court,  it  must  be  remem- 
bered that  the  discretion  to  be  exercised  on  such  an 
occasion  is  not  a  wild  but  a  sound  discretion,  and  to  be 
confined  within  those  limits  within  which  an  honest  man, 
competent  to  discharge  the  duties  of  his  office,  ought  to 
confine  himself.  And  that  discretion  will  be  best  exer- 
cised by  not  deviating  from  the  rules  laid  down  by  our 
predecessors ;  for  the  practice  of  the  court  forms  the  law 
of  the  court. "^ 

§  10.  A  court  has  no  discretionary  power,  in  opposition 
to  the  settled  principles  of  law  and  equity .^ 

§  11.  In  another  case  a  distinction  is  made  between 
judicial  and  arbitrary  discretion.^ 

§  12.  "An  application  for  a  new  trial  is  an  application 
to  the  discretion  of  the  court,  who  ought  to  exercise  that 
discretion  in  such  a  manner  as  will  best  answer  the  ends 
of  justice."* 

'  Per  Bellows,  J.,  Cummings  v.  ^  Per    Brevard,    J.,  Hudson  v. 

White,  &c.,  43  N.  IT.  ll.').  Williamson,  1  S.  C.  Con.  ;;C0. 

2  Per   Lord    Kinyon,  Wilson  v.  '^  Per  Ashliurst,  .J.,  Edniondson 

Rastall,  4  T.  K.  753.  v.  Macliell,  2  T.  11.  4. 

*  Per  WahvortU,  Cli.,  President, 
&c.  V.  Patclien,  8  Wend.  47. 

and  P]q.  171.  If  a  cause,  brought  in  a  superior  court,  is  tried  in  a  county 
court  by  the  judge's  order,  the  jurisdiction  to  grant  a  new  trial  remains 
in  the  superior  court.     Balmforth  v.  Pledge,  Law  Rep.  1  Q.  B.  427. 


en.  I.]  DEFINITION,   ETC.,   OF   NEW   TRIAL.  15 

§  13.  "  Motions  for  new  trials  are  addressed  to  the  dis- 
cretion of  the  court,  whether  based  upon  the  weight  of 
evidence,  surprise,  or  newly-discovered  evidence,  or  the 
fact  that  the  party  has  been  deprived  of  his  evidence  by 
accident  or  other  like  grounds.  In  modern  practice  they 
are  liberally  granted,  in  furtherance  of  justice.  The  dis- 
cretion spoken  of  is  said  to  be  a  legal  discretion,  not  arbi- 
trary, and  yet  it  is  not  governed  by  fixed  rules,  for  then 
there  were  no  discretion.  Lord  Mansfield  says  that 
'discretion,  when  applied  to  a  court  of  justice,  means 
sound  discretion,  guided  by  law.  It  must  be  governed  by 
rule,  not  by  humor ;  it  must  not  be  arbitrary,  vague,  and 
fanciful,  but  legal  and  regular.'  "^ 

§  14.  "If  they  grant  a  new  trial,  their  decision  upon 
the  merits  is  not  subject  to  a  revision;  yet,  if  they  grant 
a  new  trial  in  a  case  where  they  had  no  legal  authority  to 
do  so,  it  is  error. "^ 

§  15.  "An  improper  exercise  of  discretion,  as  in  refusing 
a  new  tiial,  &c.,  is  not  a  ground  for  a  writ  of  error.  But 
where  palpable  injustice  has  been  done  by  an  inferior 
jurisdiction,  in  the  exercise  of  a  discretionary  power,  in 
opposition  to  the  settled  principles  of  law  and  equity, 
their  proceedings  may  be  corrected  either  by  certiorari  or 
mandamus. ''\a) 

§  16.  In  England,  the  first  movement  towards  a  new 
trial  is  in  the  form  of  a  motion  to  show  cause  why  a  new 
trial  should  not  be  granted. (6)    The  practice  does  not  pre- 

'  (Rex  V.  Wilkes,  4  Burr.  2539) ;        2  Per  Phelps,  J.,    Houghton  v. 
per  Allen,  J.,  Piatt  v.  Munroe,  34    Slack,  10  Vemi.  520. 
Barb.  292-3.  »  Per  Wahvorth,  Ch.,  President, 

&c.  ■».  Patchen,  8  Wend.  47. 

(a)  In  Illinois  and  Mississippi,  the  granting  and  refusing  of  new  trials 
are  by  statute  made  subject  to  writs  of  error.  Smith  v.  Shultz,  1  Scam. 
490 ;  Miss.  Ses.  L.  I  109. 

{h)  In  Georgia,  it  is  no  error  to  grant  a  rule  nisi,  to  show  cause  why 


16  THE    LAW    OF   NEW    TRIALS.  [CH.  I. 

vail  in  the  United  States;  and  in  reference  to  it  the  follow- 
ing remarks  are  made  in  an  English  case:  "  A  rule  to  show 
cause  why  there  should  not  be  a  now  trial,  is  granted  for 
little  more  than  asking,  if  any  plausible  doubt  can  be 
stated.  But  if  this  were  to  be  followed  up  by  making 
the  rule  absolute  on  the  same  grounds,  it  would  be  great 
injustice  to  the  parties,  and  would  tend  to  multiply  liti- 
gation to  an  enormous  degree.  Value  alone  is  not  a 
ground  for  granting  a  new  trial,  although  it  frequently 
weighs  in  granting  a  rule."^ 

§  17.  The  following  points  of  distinction  may  be  no- 
ticed, between  a  new  trial  and  other  forms  of  rehearing. 

§  18.  In  the  United  States,  the  probably  prevailing  mode 
of  application  for  a  new  trial  is  by  hill  of  excejytions.  In 
a  late  case  in  Massachusetts  it  is  remarked:  "Exceptions 
are  in  effect  nothing  more  than  a  motion  for  a  new  trial 
on  the  ground  of  error  in  law,  the  only  difl'erence  between 
the  two  being  that  the  latter  is  addressed  to  the  discre- 
tion of  the  court  before  which  the  case  was  tried,  while 

I  Per  BuUer,  J.,  Vernon  i'.  Han-    key,  2   T.  R  118.     See   Odell  v. 

Sargent,  3  Kans.  80. 


a  new  trial  should  not  be  granted.  Spence  v.  Ilolraan,  30  Ga.  646. 
Such  rule  may  be  moved  for  without  previous  notice.  And,  when  granted, 
if  the  adverse  party  agrees  to  a  brief  of  evidence,  but  objects  that  he 
has  not  been  served  with  notice,  it  is  not  error  to  postpone  the  hearing 
to  the  next  term.  Gauldin  v.  Crawford,  30  Ga.  674.  Where  a  statute 
provides,  that  a  statement  on  motion  for  a  new  trial  shall  be  settled  by 
the  judge  upon  notice,  if  it  is  not  agreed  to  by  the  adverse  party,  it  is 
not  necessary  that  he  should  be  present  at  such  settlement,  if  he  had 
notice.  Where  the  statute  does  not  specify  the  time  within  which  pro- 
posed amendments  shall  be  made  or  filed,  it  is  for  the  court  to  specify  the 
time.  A  statement  must  be  certified  as  correct  by  the  judge  or  the 
parties.  It  must  specify  the  particulars  in  which  the  evidence  is  alleged 
to  be  insufficient,  and  the  errors  upon  which  the  application  relies.  Vil- 
hac  V.  Biven,  28  Cal.  409. 


ClI.  I.]  DEFINITION,   ETC.,   OF  NEW   TRIAL.  17 

the  former  lie  as  a  matter  of  right  to  the  court  for  the 
correction  of  errors."'(a) 

§  19.  In  England,  a  party  cannot  move  for  a  new  trial 
upon  a  point  which  might  have  been  included  in  excep- 
tions previously  tendered,  without  abandoning  the  excep- 
tions.^ 

§  20.  It  is  held  that  a  motion  for  a  new  trial  is  the 
proper  remedy  for  error  in  admitting  or  rejecting  testi- 
mony, or  in  the  charge  of  the  judge  to  the  jury  ;  a  motion 
in  en-or,  for  errors  in  the  declaration,  pleadings,  and  judg- 
ment.^(&)  So  a  new  trial  will  be  granted,  where  judgment 
was  rendered  upon  a  point  reserved,  which  did  not  appear 
on  the  record.*  But,  in  general,  an  error  apparent  on  the 
record  cannot  be  taken  advantage  of  on  a  motion  for  a 
new  trial.* 

§  21.  In  'New  York,  the  Court  of  Apyeals  has  no  power 
to  review  a  decision  of  facts.  Where  a  question  of  fact 
enters  into  the  decision  of  a  motion  for  a  new  trial,  the 
proper  course  is  to  submit  to  a  new  trial,  and  not  appeal.^ 

§  22.  In  general,  a  motion  in  arrest  of  judgment  affirms 


'  Per  Bigelow,  C.  J.,  Seccomb  v.  444  ;  Vivion  v.  Lafayette  County, 

Provincial,  >S:c.,  4  Allen,  154.     See  ib.  453. 

Meeker  v.  Turner,  8  Dutch.  2G2.  ■»  Dunett  v.  Barksdale,    2    Dev. 

2  Adams  v.  Andrews,  15  xVd.  &  251. 

Ell.  N.  S.  1001.  5  Beers  v.  Broome,  4  Conn.  247. 

3  Tolland  ti.  Willington,  26  Conn.  ^  Miller  v.  Scliuyler,  20  N.  Y.  (6 
578 ;  Pogue  «.  The  State,  13  Mis.  Smith)  522. 


[a)  In  reference  to  the  proceeding  by  a  Case  on  the  Report  of  the 
Judge,  see  Banchor  v.  Mansel,  47  Maine,  58. 

(6)  See  p.  1,  n.;  chap.  2,  ?  1.   In  some  of  the  States,  this  distinction  does 

not  prevail ;  the  technical  term  of  error  being  applied  to  those  grounds  of 

exception  and  applications  for  rehearing,  which  ordinarily  fall  under  the 

head  of  neto  trial.     In  Connecticut,  the  court  above  advise  a  new  trial. 

2 


18  THE   LAW    OF   NEW    TRIALS.  [CII.  I. 

the  verdict,  and  precludes  a  motion  for  a  new  trial. ^    (See 
Cluip.  2.) 

§  23.  "Tlie  UTit  ofrcvieiD  was  unknown  at  common  law, 
and  seems  to  have  been  borrowed  from  courts  of  equity, 
where  it  was  in  the  nature  of  a  writ  of  error,  its  object 
beino-  to  procure  a  reversal  or  alteration  of  a  decree  upon 
a  former  bill,  which  decree  had  been  signed  and  enrolled. — 
A  distinct  and  independent  proceeding,  commenced  by- 
writ,  and  not  necessarily  in  the  court  where  the  judgment 
reviewed  was  rendered,  and  not  operating  to  vacate  the 
judgment,  or  even  as  a  supersedeas  or  stay  of  execution. 
In  these  respects  it  is  the  same,  whether  brought  as  of 
right  or  by  grant  upon  petition. "-((() 

>  Shrewsbury  v.  Smith,  13  Ind.  «  Per  Bellows,  J.,  Barron  v. 
317.  Jackson,  42  N.  II.  423. 


(a)  The  following  recent  cases  illustrate  the  somewhat  peculiar  prac- 
tice in  the  State  of  New  York: — 

ISIotion  for  leave  to  open  a  case  after  judgment,  to  prove  a  lien.  This 
lien  was  held  at  the  trial  not  to  be  shown,  by  proof  of  the  pendency  of 
proceedings  in  the  Court  of  Common  Pleas,  according  to  the  statute,  to 
bring  a  previous  lien  to  a  close,  and  thus  give  to  the  mover  a  share  in 
the  fund  arising  from  the  sale  of  the  premises ;  which  fund  was  in  court, 
awaiting  the  event  of  an  action  by  the  owner  against  several  claiming 
liens,  to  ascertain  their  amount  and  priority  and  liquidate  them.  Held, 
on  motion  for  a  new  trial,  that  an  order  denying  it  was  therefore  appeal- 
able, and  the  delay  in  making  the  motion  had  not  placed  the  opposing 
party  in  any  worse  position,  or  deprived  him  of  any  advantage  which  he 
ought  in  justice  to  have  or  keep;  and,  as  the  failure  to  produce  the  evi- 
dence at  the  trial  arose  from  the  mistaken  conviction  of  counsel  that  the 
proof  produced  was  sufficient,  and  no  injustice  would  result,  such  motion 
should  be  allowed.  Levy  v.  Joyce,  1  Bosw.  C'22.  In  a  late  case  in  New 
York,  a  statute  of  1860,  entitled  "an  act  in  relation  to  capital  punish- 
ment, and  to  provide  for  the  more  certain  punishment  of  the  crime  of 
murder,"  was  held  by  the  Court  of  Appeals,  on  the  one  hand  to  have 
absolutely  repealed  all  previous  statutes  on  the  subject,  and  on  the  other 
to  be  itself  unconstitutional  in  relation  to  a  past  crime.  In  a  case,  there- 
fore, where  there  had  been  a  conviction  in  the  court  below,  but  no  error 
in  the  trial  or  conviction  itself,  the  judgment  was   reversed,  and  the 


en.  I.]  DEFINITION,   ETC.,   OF   NEW   TRIAL.  19 

§  24.  It  has  been  recently  held  in  Massachusetts,  that 
exceptions  do  not  lie  to  the  discharge  of  a  prisoner  on 
habeas  corjms.^  The  court  remark:  "The  great  pur^DOse  of 
the  writ  is  the  immediate  delivery  of  the  party.  The 
allowance  of  exceptions  would  be  inconsistent  with  the 
object.  The  consequence  must  be,  either  that  all  further 
proceedings  be  stayed,  which  would  be  wholly  inconsistent 
with  the  purpose  of  the  writ,  or  that  the  exceptions  be 
held  frivolous,  and  judgment  rendered  7ion  obstante  for  the 
discharge  of  the  party,  in  which  case  the  exceptions 
would  be  unavailing."^ 

'  "Wyetlii).  Ricliardson,  10  Gray,  2  (j^  substance)  Shaw,  C.  J.,  ib. 
240.  241. 

prisoner  discharged ;  the  statute  in  regard  to  writs  of  error  authorizing  a 
new  trial  only  where  the  trial  and  conviction  are  illegal.  Kuehler  v. 
The  People,  Law  Reg.,  Nov.  18G2,  p.  43.* 


*  The  legislative  has  rarely  if  ever  received  a  more  cutting  rebuke  from  the  judiciary 
department  of  the  government,  than  by  the  expressions  contained  in  this  opinion. 
"Blind  and  sweeping  changes." — "The  legislature,  omnipotent  both  in  wisdom  and 
folly." — "  It  was  no  fault  of  his  that  the  legislature  had  deprived  him  of  his  well-earned 
deserts  to  be  hanged."—"  If  the  result  shall  form  beacons  to  warn  against  future  imita- 
tion of  the  folly  and  stupidity,"  &c. 


20  THE    LAW    OF   NEW    TRIALS.  [cil.  IT. 


CITArTEPt  11. 

GROUNDS  OF  NEW  TRIAL. 


1.  General  grounds — dehors  the 
record. 

Verdict    presumed    correct  ; 


18.    Amendment  of  bill    of  ex- 
ceptions. 

2.J.  Limitations  of  the  rule. 


motion  for  new  trial  must  show  20.  Other  evidence  as  to  the 
affirmatively  the  ground  of  alleged  points  contained  in  the  bill  of  ex- 
error,  ceptions. 

13.  Qualifications  of  this  rule.  28.    Motion    in   arrest  of  judg- 

15.  Form  of  exceptions^  founded    ment. 
upon  the  foregoing  rule.  I      29.  Writ  of  error. 

§  1.  The  general  grounds  for  a  new  trial  arc  said  to  be 
errors  of  a  judge  in  matters  of  law,  and  errors  of  a  jury 
in  matters  of  fact.'  And,  in  either  case,  matters  foreign 
to,  or  dehors,  the  reeord.-{a) 

I  Rochell  z).  Phillips,  1  Hemp.  2  Bowie  r.  State,  19  Geo.  1;  War- 
22.  ren  v.  Litchfield,  7  Greenl.  69. 

(a)  See  p.  1 ;  chap.  2,  §  20.  In  Ohio,  a  new  trial  will  not  be  granted  in 
ejectment,  upon  the  application  of  the  plaintiff,  except  under  peculiar  cir- 
cumstances. Socknian  v.  Sockman,  18  Ohio,  362.  In  South  Carolina, 
on  a  question  of  location,  a  new  trial  will  more  readily  be  granted  than 
on  most  other  cases  depending  upon  facts,  in  consequence  of  their  near 
approach  to  questions  of  law.  Felder  f.  Bonnett,  2  McMullan,  44; 
Wolfe  V.  Knotts,  2  McMullan,  75;  Matthews  v.  Horlbeck,  1  Rich.  382. 
'J'he  finding  of  the  court  on  an  issue  of  fact,  by  consent  of  parties,  is 
entitled  to  the  same  consideration,  on  a  motion  for  a  new  trial,  as  the 
verdict  of  a  jury.  Oakly  v.  Aspimvall,  2  Sandf  7.  In  Maine,  it  seems 
that  exceptions  lie  to  a  rejection,  by  the  Court  of  Common  Pleas,  of  a 
report  of  referees  appointed  by  a  rule  of  court.  Vance  v.  Carle,  7 
Greenl.  164.  So  of  an  order  directing  a  nonsuit.  Feyler  v.  Feyler,  2 
Greenl.  310.  The  statute  of  AVestminster  2,  c.  31,  is  no  longer  in  force 
in  Maine,  it  seems;  being  superseded  by  the  statute  providing  for  ex- 
ceptions. Colley  V.  Merrill,  6  Greenl.  .5.5.  In  Massachusetts,  a  decision 
on  a  motion  to  dismiss  an  action  for  a  defect  in  the  process,  apparent  of 


CE.  II.]    GROUNDS  OF  NEW  TRIAL — HOW  STATED.        21 

§  2.  The  law  presumes  a  verdict  to  be  correct.  Hence, 
on  a  motion  for  a  new  trial,  the  party  must  set  forth  the 
grounds  upon  which  he  intends  to  rely,  or  the  objections 
will  be  considered  as  waived.'(«)  (See  Waiver.)    '"Denon 

•  Wiug«.  Owen,  9  Cal.  247 ;  Col-    lier  v.  The  State,  20  Ark.  36.     See 

Hamilton  v.  Conyers,  25  Geo.  158. 

record  (as  for  want  of  legal  indorsement  of  a  writ),  is  a  matter  of  law,  to 
which  exceptions  may  be  taken.  Purple  v.  Clark,  5  Pick.  206.  Excep- 
tions do  not  lie  to  a  judgment  on  a  report  of  referees,  under  a  submission 
entered  into  before  a  justice  of  the  peace.  Dean  v.  Dean,  2  Pick.  25. 
But  under  the  statute,  allowing  exceptions  to  opinions,  directions,  or 
judgments  of  the  Common  Pleas,  in  matters  of  law;  a  bill  lies  to  a  judg- 
ment of  that  court  on  a  report  of  referees  under  a  rule  thereof,  in  an 
action  originally  commenced  there,  though  the  rule  state  that  the  judg- 
ment shall  be  final.  Miller  v.  Miller,  2  Pick.  570.  So  though  the  action 
referred  was  originally  brought  before  a  justice  of  the  peace.  Olney  v. 
Brown,  2  Pick.  572.  Exceptions  lie  to  a  refusal  to  receive  the  petition 
of  an  assignee  of  a  debt,  that  the  jury  may  try  the  question  of  assign- 
ment, when  the  delator  has  been  summoned  and  adjudged  to  be  garnishee 
of  the  assignor.  Ammidown  v.  Wheelock,  8  Pick.  470.  The  decision, 
by  a  single  judge,  of  a  question  of  fact  upon  the  hearing  of  a  probate 
appeal,  may  be  excepted  to,  and  may  be  revised  by  the  whole  court,  if 
the  judge  fully  reports  the  evidence.  It  is,  however,  discretionary  with 
the  judge  to  report  the  evidence  or  not.  Stearns  v.  Fiske,  18  Pick.  24. 
So  exceptions  may  be  taken  to  instructions,  &c.,  of  a  judge  of  the  Su- 
preme Court  on  the  trial  of  a  probate  appeal.  Higbee  v.  Bacon,  11 
Pick.  423.  Under  Rev.  Sts.  of  Massachusetts,  c.  86,  §  11,  and  c.  146, 
§  5  (See  Gen.  Sts.),  exceptions  may  be  taken  to  a  decision  of  the  muni- 
cipal court  in  a  matter  of  law,  upon  the  trial  of  an  action  commenced 
before  the  Rev.  Sts.  went  into  operation.  McManagil  v.  Ross,  20  Pick. 
99.  So  to  the  instructions,  &c.,  of  the  Court  of  Common  Pleas  upon' 
the  trial  of  the  question  of  damages  sustained  by  the  owner  of  land  taken 
for  widening  a  street  in  Boston.  Parks  v.  Boston,  15  Pick.  198.  A  bill 
of  exceptions  does  not  lie,  where  there  is  a  right  of  appeal.  Rathbone 
V.  Rathbone,  4  Pick.  93;  Piper  v.  Willard,  10  Pick.  34;  Champion  v. 
Brooks,  9  Mass.  228.  See  1  Greenl.  291 ;  Hemmenway  v.  Hickes,  4  Pick. 
497.  A  bill  of  exceptions  cannot  be  taken  to  the  judgments  and  de- 
crees of  the  Orphans'  Court,  in  Maryland.  Mayhew  v.  Soper,  10  Gill  & 
Johns.  36. 

(«)  In  Indiana,  an  application  for  a  new  trial  must  be  verified.  Cox 
V.  Hutchings,  21  lud.  219.     In  California,  when  there  has  been  no  legal 


22  THE    LAW    OF   NEW    TRIALS.  [ciI.  IT. 

apparent i])iis  et  de  noii  existentibiis  eadcm  est  ratio'  is  an 
old  and  well-established  maxim  in  legal  proceedings,  and 


notice  of  a  motion  for  a  new  trial,  the  statement  cannot  be  made  the 
foundation  of  such  a  motion,  nor  annexed  to  the  record  of  the  judgment 
or  order  from  which  the  party  may  appeal.  Flateau  v.  Lubcck,  24  Cal. 
364.  All  errors,  to  which  objection  is  made  on  motion  for  a  new  trial, 
should  be  specified  in  the  statement  of  facts.  Crowthcr  v.  llowlandson, 
27  Cal.  376  :  Burnett  v.  Pacheco,  ib.  408 ;  Partridge  v.  San  Francisco, 
ib.  415.  The  statement  on  motion  for  a  new  trial  must  set  forth  the 
grounds  intended  to  be  relied  on,  if  they  are  not  contained  in  the  notice 
of  intention  to  make  such  motion.  "Walls  v.  Preston,  25  Cal.  59.  If  the 
parties  stipulate  in  writing,  that  the  statement  on  motion  for  a  new  trial 
and  the  judgment-roll  are  correct,  and  may  be  used  as  such  without 
further  certificate  or  identification  ;  it  will  be  held  that  notice  of  a  motion 
for  a  new  trial  was  regularly  served,  and  that  all  technical  o])jections  to 
the  statement  are  waived.  Godchaux  v.  Mulford,  26  Cal.  316.  When 
the  statute  notice  of  a  motion  for  a  new  trial  is  not  given,  an  order 
granting  a  new  trial  will  be  reversed.  A  record  of  court,  viz.:  "Now 
come  the  defendants,  &c.,  in  open  court,  add  give  notice  of  a  motion  for 
a  new  trial,"  &c.,  is  not  a  sufiicient  notice  to  the  plaintiff,  the  record  not 
showing  the  plaintiff's  presence  in  court,  at  the  time  the  entry  was  made. 
An  order:  "It  is  ordered  that  all  proceedings  under  the  judgment  re- 
covered by  plaintiff  against  defendants  be,  and  they  are  hereby,  stayed 
and  superseded  until  the  5th  day  of  May  next,  in  order  that  counsel  may 
present  and  prepare  his  statement  on  motion  for  a  new  trial,"  made  the 
day  after  the  rendition  of  judgment,  will  not  operate  to  extend  the 
time  fixed  in  the  statute  for  preparing  and  presenting  a  motion  for  a  new 
trial.  Bear  v.  Boles,  24  Cal.  354.  In  Texas,  an  application  for  a  new 
trial  must  be  accompanied  by  a  statement  of  the  facts  or  a  bill  of  ex- 
ceptions. Arnold  v.  Williams,  21  Tex.  413:  AngcU  v.  Street,  ib.  485. 
In  Nevada,  a  paper  headed  "  motion  for  a  new  trial,"  containing  a  notice 
that  a  new  trial  would  be  moved  for  on  a  specified  day,  and  that  the  mo- 
tion would  be  founded  on  certain  grounds,  viz.,  that  the  evidence  is  in- 
sufficient, &c.,  and  comprising  a  statement  that  certain  writings,  notices, 
&c.,  would  be  relied  on  in  support  of  the  motion,  is  a  sufficient  statement 
to  support  the  motion,  although  informal.  Van  Valkenburg  v.  Hull,  1 
Nev.  142.  In  Missouri,  a  motion  for  a  new  trial  need  not  be  accompanied 
by  a  written  specification  of  the  reason  upon  which  it  is  founded,  under 
Rev.  Code,  1855,  p.  1026.  State  v.  Marshall,  36  Mis.  400.  In  Iowa, 
where  a  motion  for  a  new  trial,  except  for  newly-discovered  evidence,  is 
required  by  statute  to  be  made  at  the  term,  and  within  three  days  after 
the  verdict  or  decision  was  rendered,  such  a  motion,  made  within  the 


CH.  II.]         GROUNDS   OP   NEW    TRIAL — HOW    STATED.  23 

is  founded  on  principles  of  justice  as  well  as  of  law."^ 
"  It  is  the  business  of  the  party  who  takes  exceptions  to 
show  that  the  decision  is  wrong.  It  is  not  enough  that 
he  succeeds  in  mystifying  it  by  adopting  language  which 
subjects  the  judge  to  the  suspicion  that  he  did  not  under- 
stand the  safest  ground  on  which  to  place  it."^     Thus, 

1  Per  Taney,  C.  J.,  United  States     Cobb,  21  Ind.  492;  State  v.  Galla- 
V.  Wilkinson,'  13  How.  253  ;  Beal     glicr,  IG  La.  An.  388. 
V.  Stone,  22  Iowa,  447;  Aurora  v.        ^  Per  Morgan,  J.,  Munro  v.  Pot- 
ter, 34  Barb ."360-1. 

required  time,  may  be  amended,  subsequently,  by  leave  of  court,  the 
amendment  being  german  to  the  object  and  purpose  of  the  original 
motion.  Sowden  v.  Craig,  20  Iowa,  477.  In  Louisiana,  any  party  has 
the  right,  within  three  judicial  days  from  judgment,  to  move  for  a  new 
trial,  though  the  judgment  have  been  prematurely  signed,  unless  the 
court  has  adjourned.  McWillie  v.  Perkins,  20  La.  An.  168.  In  Massa- 
chusetts, where  the  judge  of  the  superior  court  took  a  bill  of  exceptions, 
which  had  been  agreed  upon,  for  the  purpose  of  examining  it  and  making 
corrections  if  necessary,  and  retained  it  for  more  than  a  year,  and  until 
after  his  resignation  ;  held,  the  superior  court  might,  in  their  discretion, 
grant  a  new  trial,  though  the  excepting  party  omitted  to  prove  his  ex- 
ceptions under  the  Gen.  Sts.  c.  115,  §  11.  Borrowscale  v.  Bosworth,  98 
Mass.  34.  In  Nevada,  a  statement  of  evidence  on  motion  for  a  new  trial 
must  be  agreed  to  by  both  parties  or  settled  by  the  judge.  So  an 
amendment  of  the  original  statement  and  a  supplemental  statement. 
Levey  v.  Fargo,  1  Nev.  415.  A  refusal  to  argue  a  motion  for  a  new  trial 
does  not  operate  as  an  abandonment  of  it,  when  the  statement  sets  forth 
specifically  the  grounds  of  the  motion,  and  it  has  been  duly  made  and 
submitted.  Carder  v.  Baxter,  28  Cal.  99.  Errors  relied  on  for  a  new 
trial  must,  under  I  372  (Ky.),  Civil  Code,  be  specified  in  writing.  Hop- 
kins V.  Commonwealth,  3  Bush,  480.  Under  ?  195  of  the  (Cal.)  practice 
act,  the  application  for  a  new  trial  on  the  ground  that  the  evidence  is 
insufiBcient  to  justify  the  findings,  must  "specify  the  particulars,"  &c. 
Beans  v.  EmauucUi,  36  Cal.  117.  Such  applicant,  who  states  that  he 
"  will  rely  on  the  argument  of  the  motion  for  a  new  trial  in  this  cause 
on  the  following  grounds,"  enumerating  them,  abandons  all  other  grounds. 
lb.  The  cases  upon  this  subject  are  so  numerous,  and  the  subject  itself 
so  much  one  of  practice,  regulated  to  a  considerable  extent  by  express 
statute  and  local  usage,  that  a  connected  and  systematic  view  of  it  is 
very  difficult,  if  not  quite  impracticable.  Any  apparent  repetition  or 
confusion  in  the  text  of  the  present  chapter  may  be  partially  explained 
by  this  consideration. 


24  THE    LAW    OF   NEW    TRIALS.  [CII.  11. 

where  tlic  motion  (for  a  new  trial)  merely  shows,  that  a 
party  claiiiicd  that  certain  evidence  was  not  admissible  in 
any  way  to  aftect  the  terms  of  a  written  instrument; 
without  showing  that  the  claim  was  made  when  the  evi- 
dence was  oifered,  or  that  the  evidence  was  let  in  subject 
to  exception,  and  the  claim  subsequently  made  that  it 
should  be  excluded,  or  that  the  court  were  requested  to 
charge  as  to  its  effect  or  the  consideration  to  be  given  to 
it :  no  question  is  raised  which  the  court  is  bound  to  con- 
sider.^ So,  although  the  evidence,  appearing  of  record, 
does  not  sustain  the  verdict  and  judgment,  a  new  trial 
will  not  be  granted,  unless  it  appear  also  that  no  other 
evidence  was  offered.-  All  the  facts  must  be  stated.' 
And  error  must  distinctly  appear  in  the  exceptions.'*  So, 
when  there  are  two  issues,  one  material  and  the  other 
valid,  and  a  general  finding  for  the  defendant,  it  will  be 
presumed  that  the  jury  disregarded  the  immaterial  issue, 
and  a  new  trial  will  not  be  granted.'^ 

§  3.  In  conformity  with  these  general  principles,  a  bill 
of  exceptions  for  misdirection  must  contain  enough  of  the 
evidence  to  show  that  the  judge  ruled  erroneously.''  It 
must  appear  what  particular  rulings  were  excepted  to.'^ 
A  general  exception  to  the  charge  is  insufficient.'^  It  is 
said  that  the  correctness  of  instructions,  in  most  if  not  in 
all  cases,  depends  upon  the  facts  developed  upon  the  trial; 
and  where  their  applicability  or  irrelevancy  is  not  shown, 
by  a  bill  of  exceptions,  embodying  sufficient  of  the  testi- 

'   Per  Butler,  J.,    Ratlibone   v.  ^  Ilarvoj'  v.  Lafliu,  3  Cart.  477. 

City,  etc.,  :il  Conn.  204.  s  Fuller  v.  Kuby,  10  Gray,  285  ; 

2  Ballard  v.  Noaks,  2  Pike,  45;  Ilewes  v.  llanscom,  ib.  33G. 
Millett   V.  Hayfbrd,    1    Wis.    401  ;  ?  Woolf  v.    Chalker,    31    Conn. 
Terry  v.  Robins,  5  Sm.  &  ]\r.  201  ;  121  ;  Peck  v.  Hensley,  21  Ind.  344; 
Benoist   v.   Powell,    7    Mis.    224;  Estep  r.  Larsh,  21  Ind.  183;  Pogers 
Overman  v.  Cobb,  13  Ired.  1.  ».  Marshal,  1    Wall.  G44  ;  Jack  v. 

3  Ba.\ter  v.  Abbott,  7  Gray,  71  ;  Naber,  15  Iowa,  450  ;  Thrasher  v. 
Waller  p.  Tiie  State,  4  Pike.  87.  Tyack,  15  Wis.  250. 

*  Brown   ('.  Gray.  G  Jones,  103  ;        ^  Reynolds  v.  Boston,  &c.,  43  N. 
Dickey  v.  Maine,  "&c.,  46  Maine,     II.  500. 
483. 


en.  II.]         GROUNDS   OF   NEW    TRIAL — HOW    STATED.  25 

mony,  the  appellate  court  cannot  determine  upon  their 
correctness,  nor  whether  the  court  erred  in  granting  a 
new  trial,  on  the  ground  that  they  were  erroneous.'  So 
in  a  late  case  it  is  said, "  none  of  the  assignments  (of  error) 
are  properly  made.  They  aver  that  tlic  court  erred  in 
their  answers  to  each  of  the  six  points  submitted,  but 
they  do  not  specify  how  the  court  erred,  or  in  what  the 
alleged  mistakes  consisted.  This  mode  of  assigning  errors 
is  altogether  insufficient.  It  would  be  at  common  law, 
and  it  is,  if  possible,  even  more  so  under  the  rules  of  this 
court.  It  compels  us  to  gather  the  complaints  of  the 
plaintiffs  in  error  rather  from  their  arguments  than  from 
the  record,  and  tends  to  obscure  the  matters  really  in 
controversy."^  So,  in  an  action  on  a  policy  of  insurance, 
where  the  defence  was  cancellation  ;  it  was  proved,  without 
objection,  that  the  insured  was  told  by  his  agent,  that  the 
company  charged  an  extra  premium  for  a  voyage  between 
two  ports.  Held,  a  refusal  to  instruct  the  jury,  that  the 
company  had  no  right  to  make  such  a  charge,  was  not 
ground  for  new  trial,  if  accompanied  by  the  reason,  that 
the  case  did  not  involve  any  such  question;  and  as  it  did 
not  appear,  by  the  bill  of  exceptions  or  otherwise,  that  it 
was  urged  to  the  jury  that  the  company  had  any  such 
right,  or  that  the  point  was  material  or  pertinent.^  So, 
in  an  action  upon  a  warranty  and  for  deceit  in  the  sale  of 
a  horse,  the  defendant's  counsel,  in  his  argument  before 
the  court  and  jury,  oftered  to  read  from  a  work  on 
Yeterinary  Surgery,  which  he  proved  by  a  witness  to  be  a 
reputable  and  standard  authority  on  that  subject;  but  the 
evidence  was  rejected.  The  court  above  refused  to  sustain 
a  bill  of  exceptions,  because  the  bill  did  not  show  that 
the  passages  proposed  to  be  read  had  any  relevancy  to  the 
cause,  or  came  within  the  proper  scope  of  argument."* 


•  Farr  v.  Fuller,  8  Clarke,  347.  »  Bedell   v.  Commercial,  &c.,  3 

2  Per  Strong,  J.,  Franklin,  &c.     Bosw.  147. 
«.  Updegraff,  43  Penu.  358.  ^  Legg  v.  Drake,  1  McCook,  283. 


26  THE    LAW    OF    NEW    TRIALS.  [CH.  II. 

§  4.  And,  upon  exceptions  to  instructions,  no  objection 
lies  to  incompetent  evidence.^ 

§  5.  A  general  objection,  to  all  and  each  and  every 
part  of  evidence  offered,  is  properly  overruled,  if  any  part 
of  the  evidence  is  admissible  for  the  purpose  for  which  it 
was  ottered.^  In  a  late  case  a  new  trial  was  refused,  for 
tlie  reason  that  incompetent  declarations  were  admitted 
in  evidence,  the  exceptions  not  showing  what  the  decla- 
rations were.^  So  in  another  recent  case  the  court  would 
not  permit  a  certain  draft  to  go  to  the  jury.  The  excep- 
tion alleged  that  the  draft  was  testified  to  by  witnesses 
named  in  the  exception;  but  that  testimony  as  reported 
did  not  mention  the  draft.  A  new  trial  was  refused.'*  So 
evidence  in  contradiction  of  a  levy  is  rejected,  the  nature 
of  the  evidence  not  being  specified.  Evidence  dehors  the 
record  would  be  incompetent.^ 

§  6.  A  ground  of  exception  was  the  rejection  of  evi- 
dence, that  administrators  did  not  purchase  certain  pro- 
perty as  such,  but  as  individuals.  The  court,  admitting 
that  such  rejection  would  be  ground  for  reversing  the 
judgment,  proceed  to  remark :  "  But  does  the  bill  certify 
us  that  any  evidence  tending  to  show  that  the  adminis- 
trators purchased  in  their  individual  and  not  their  repre- 
sentative characters  was  offered?  It  tells  us  that  certain 
proceedings  were  had  with  the  Orphans'  Court  from  which 
this  conclusion  would  follow,  and  it  refers  to  them  with' 
a  i^ro  ut  the  same,  but  it  does  not  set  them  forth,  nor  even 
furnish  us  with  an  outline  of  them.  If  the  offer  was 
made  to  the  court  below  as  it  is  certified  to  us,  it  was 
rightly  rejected,  not  indeed  for  the  reasons  assigned  below, 
but  because  it  did  not  tend  to  establish  any  interest  what- 


'  Gardner  v.  Gooch,  48  Maine,  ^  Hackett  v.  King,  8  AUon,  144. 

487.  ■*  Kinter  v.  Jenks,  43  Penn.  445. 

^  Evorott  ».  XcfT,   28   Md.   ITH  ;  ^  ]\icClcnaluiu    v.    Hunnes,     25 

O'llagau  v.  Cliuesmitli,  24   loAva,  Penn.  85. 
249. 


en.  II.]    GROUNDS  OF  NEW  TRIAL — HOW  STATED.        27 

ever  in  Frederick  R.  in  the  goods  in  question."  In  the 
same  case  exception  was  taken  to  the  rejection  of  a  wit- 
ness. The  court  expressly  admit  that  he  was  wrongly 
rejected  for  the  reason  assigned,  but  proceed  to  remark : 
"But  what  was  he  called  to  prove?  Anything  the  loss 
of  an  opportunity  to  prove  which  was  injurious  to  the 
defendant?  The  bill  gives  no  answer  to  these  questions. 
We  are  referred  to  the  appendix  of  the  paper-book  for  the 
offer,  but  the  offer  is  not  to  be  found  there.  Either  in  the 
body  of  the  bill  or  in  the  appendix  the  substance  of  what 
McCullough  was  to  prove  ought  to  have  been  furnished, 
that  we  might  see  whether  harm  had  been  done."^ 

§  7.  The  rule  above  referred  to  is  applied  to  exceptions 
relating  to  the  pleadings,  in  connection  with  the  evidence. 
As,  for  example,  in  an  action  for  slander,  upon  the  ques- 
tion whether  the  form  of  the  answer  admits  the  defence 
that  the  words  were  privileged.^ 

§  8.  So  the  exceptions  must  state  the  answer  to  an  im- 
proper question,  such  question  being  the  ground  of  ex- 
ception.3  Thus,  when  a  question  put  to  a  witness  is 
objected  to,  and  the  objection  is  overruled  and  the  decis- 
ion excepted  to;  a  new  trial  will  not  be  granted,  merely 
because  an  affirmative  answer  would  be  incompetent  as 
evidence,  when  it  does  not  appear  by  the  bill  of  excep- 
tions that  any  answer  was  given.'*  So,  where  a  motion  for 
a  new  trial  does  not  show,  whether  the  court  admitted  the 
evidence  in  the  exercise  of  its  discretion,  or  on  the  ground 
that  the  party  offering  it  was  entitled  to  its  admission  as 
a  matter  of  legal  right,  the  former  will  be  presumed.^ 


'  Per  Woodward,  J.,  Lothrop  v.        »  Mavs  v.  Deaver,  1  Clarke,  316. 
Wic-htman,  41  Penu.  304-5.  *  Fry  v.  Bennett,  3  Bosw.  200  ; 

2"Lawler  ».  Earle,  5   Allen,  23.  Buru'liardt  «.  Van  Deiisen,  4  Allen, 

See  Wall  v.  Provident,  &c.,  3  Allen,  377-8. 
98.  ^  State  «.  Alford,  31  Conn.  40. 


28  THE    LAW    OF   NEW    TRIALS.  [CII,  II. 

§  9.  So,  in  reference  to  the  admission  of  deeds  in  evi- 
dence, the  court  in  a  late  case  remarked:  "So  far  as  any- 
thing is  disclosed  they  would  seem  to  have  been  wholly 
immaterial ;  but,  in  the  absence  of  any  statements  indi- 
cating that  they  were  improperly  allowed  to  be  submitted 
to  the  jury,  it  is  to  be  presumed  that  the  course  of  pro- 
ceeding in  admitting  them  in  evidence  was  correct."^ 
And  objection  to  a  question,  that  it  calls  for  the  contents 
of  a  written  instrument,  cannot  be  regarded  in  the  higher 
court,  unless  specifically  taken  in  the  court  below.-(«) 

§  10.  The  court  will  not  order  a  new  trial  on  the  ground 
of  insufficiency  of  evidence  to  justify  the  finding,  where 
the  moving  party  has  failed  to  state  that  ground  for  his 
motion.''  I^s'or  where  the  record  fails  to  show  a  total  want 
of  evidence  to  support  the  finding.^  So,  as  already  sug- 
gested, an  exception,  that  the  verdict  is  against  the  iceigkt 
of  evidence^  cannot  prevail,  unless  the  report  of  the  evi- 
dence is  duly  authenticated  by  the  presiding  judge."^  And 
in  a  late  case  in  the  Supreme  Court  of  the  United  States, 
involving  the  correctness  of  instructions  in  the  court  be- 
low, as  affected  by  a  certain  deposition,  it  is  said:  "It  is 
true  that  this  court  does  not  see  anything  in  that  part  of 
Baker's  testimony  embodied  in  the  bill  of  exceptions 
which  justifies  such  an  inference  (as  was  contained  in  the 
charge  of  the  judge).  But  the  bill  of  exceptions  does 
not  purport  to  give  all  that  he  said,  and  according  to  a 
well-known  rule,  this  court,  under  such  a  condition  of  the 

'  Per  Merrick,  J.,  Bnri:i;harclt  v.  *  IMcmpliis  «.  Bnncre,    21    Ark. 

Van  Dcnson,  4  Allen,  377-8.  30G. 

2  Carter  v.  Beals,  44  N.  II.  408.  ^  Simpson  v.  Norton,  45  Maine, 

3  School  )\  Lynch,  ?>Z  Conn.  330;  281. 
Fitch  V.  Bunch,  30  Cal.  208. 


(a)  Where  there  is  a  confused  statement  in  the  bill  of  exceptions  as 
to  the  rejection  of  material  and  important  evidence,  leaving  it  in  doubt 
whether  the  same  was  actually  rejected,  the  court  will  award  a  new 
trial.     Pearson  v.  Grice,  8  Florida,  214. 


CH.  II.]    GROUNDS  OF  NEW  TRIAL — HOAV  STATED.        29 

record,  is  bound  to  presume  that  there  was  that  in  Baker's 
testimony  which  justified  the  instruction.  AVliat  pur- 
ports to  be  the  entire  deposition  is  sent  up  by  the  clerk, 
and  is  printed  in  the  record  before  us,  an^l  if  properly  be- 
fore us  might  sustain  the  exception.  But  this  deposition 
is  not  incorporated  into  the  bill  of  exceptions,  nor  so  re- 
ferred to  in  it  as  to  be  made  a  part  of  the  record.  It  is 
only  a  useless  encumbrance  of  the  transcript,  and  an  ex- 
pense to  the  litigating  parties."^  So,  where  the  insanity 
of  a  juror  is  alleged  as  the  reason  of  a  new  trial,  it  must 
be  fully  proved.^  So,  where,  on  a  motion  for  a  new  trial, 
the  court  was  equally  divided,  the  verdict  was  sustained.^ 

§  11.  The  general  rule,  that  the  error  complained  of 
must  distinctly  appear,  applies  to  a  motion  made  in  a 
higher  court,  after  a  similar  motion  in  the  court  below.^(«) 
As  in  case  of  refusal  to  grant  a  new  trial  in  the  court 
below,  and  an  application  to  reverse  this  decision  in  the 
court  above.*  The  court  above  cannot  look  into  affidavits 
offered  below  in  support  of  the  motion.  They  form  no 
part  of  the  record.^  Affidavits  must  be  embodied  in  the 
exceptions,  in  order  to  be  used  in  the  court  above. '^  So, 
where  the  court  below  refused  a  new  trial,  in  the  appellate 
court  all  the  evidence  must  appear  in  the  exceptions.^  So 
the  court  above  will  not  revise  the  action  of  the  court 
l)elow,  in  granting  a  new  trial,  unless  the  facts  upon  which 
the  court  acted  appear  from  the  record. ^(/>)     So  an  appeal 

1  Per  Miller,  J.,  Russell  v.  Ely,  Hollowell  v.  Cheek,  ili.  614  ;  Banks 
2  Black,  580.  v.  Hempstead,  ib.  618. 

2  The  State  v.  Scott,  1  Hawks,  24.        e  Crippen  v.  People,  8  Mich.  117. 

3  Lehre  v.  Murry,  2  Brev.  19.  ^  People  v.  Houshell,  10  Cal.  83. 
*  Brown  v.  Gray,  6  Jones,  103.  «  Tompkins  p.  Eason,  SFlori.  14. 
5  Fausett  v.  Voss,  12  Ind.  525  ;        »  Roberts  v.  HefiFner,  19  Tex.  129. 

(«)  See  chap.  1,  §  7.  If  the  charge,  as  written  out  by  the  judge,  and  sent 
np  with  the  record,  varies  from  a  statement  of  it  in  the  rule  nisi  upon 
motion  for  a  new  trial ;  the  former  will  prevail.  Alston  v.  Grantham,  20 
Geo.  374. 

{b)  In  Vermont,  the  fact  tliat  a  cause  is  pending  in  the  Supreme  Court 


30  THE    LAW    OF    NEW    TRIALS.  [CH.  II. 

from  tlio  refusal  of  a  motion  for  a  new  trial,  on  the  ground 
that  the  verilict  was  excessive  and  against  evidence,  and 
the  motion  erroneously  overruled,  must  bring  before  the 
appellate  court  .the  whole  evidence.'  So  the  court  above 
will  not  reverse  the  judgment  of  the  court  below,  over- 
ruling a  motion  for  a  new  trial,  upon  an  affidavit  "  that 
three  of  the  jurors  were,  during  the  trial,  very  much  in- 
toxicated, and  so  continued  until  its  determination,  and 
that  said  affiant  believed  said  jurors  became  intoxicated 
during  the  recess  of  the  court,  and  before  the  testimony 
was  heard;"  where  the  evidence  given  upon  the  trial  is 
not  put  upon  record,  so  that  the  Supreme  Court  may  de- 
termine whether  the  verdict  was  a  just  one,  it  not  appear- 
ing that  the  misconduct  of  the  jurors  was  in  consequence 
of  the  act  of  either  of  the  parties.^  So  the  rejection  of  a 
deposition  cannot  be  a  ground  for  a  new  trial,  unless  it 
appears  that  what  it  proved  was  material ;  and  the  court 
above  cannot  decide  that  it  was  so,  unless  the  evidence 
adduced  on  the  trial  is  in  the  record.^ 

»  Nutter «.  Ricketts,  6  Clarke,  93.        ^  Kimbcrlin   v.  Farris,  5  Dana, 
2  Pelham  d.  Page,  1  Eng.  535.        533. 


upon  exceptions,  does  not  give  that  court  jurisdiction  to  grant  a  new 
trial  in  the  County  Court,  for  causes  not  appearing  upon  the  record,  upon 
a  motion  for  a  new  trial.  The  only  proper  proceeding,  to  secure  a  new 
trial  in  such  a  case,  is  an  original  one,  by  petition,  under  the  statute. 
South  Royalton  Bank  v.  Colt,  31  Vt.  415.  And  such  a  petition  cannot 
be  made  returnable  to  a  general  term  of  the  Supreme  Court.  lb.  In 
California,  where  the  statement  on  motion  for  a  new  trial  entirely  fails  to 
specify  the  particulars  in  which  the  evidence  is  insuDicicnt  to  justify,  or 
contrary  to,  the  finding,  except  as  to  an  issue  wherein  the  evidence  is 
substantially  conflicting,  this  court  will  not  disturb  the  finding.  Pralus 
V.  Pacific,  35  Cal.  30.  The  statement  will  be  presumed  to  contain  all 
the  testimony  offered.  Clark  v.  Gridley,  35  Cal.  398.  In  Georgia,  the 
brief  of  the  evidence,  as  approved  by  the  court  in  a  motion  for  a  new 
trial,  need  not  be  recorded  by  the  cleric ;  but  only  filed  in  his  office. 
White  V.  Newton,  38  Ga.  587.  After  a  brief  has  been  filed,  and  ap- 
proved by  the  presiding  judge,  a  motion  to  amend,  on  the  affidavit  of  a 
witness  whose  testimony  has  been  incorporated  therein,  should  not  be 
allowed.     Baker  v.  Wright,  37  Ga.  327. 


CII.  II.]         GROUNDS    OF   NEW    TRIAL — HOW    STATED.  31 

§  12.  The  prevailing  rule  upon  the  whole  subject  is  well 
illustrated  by  a  late  case  in  the  Supreme  Court  of  the 
United  States.  "The  objections  urged  against  the  ad- 
mission of  the  deed  from  the  sheriff  to  Lawson  were:  1st. 
That  the  deed  and  the  certificate  of  its  admission  to 
record  bore  upon  their  face  unmistakable  evidence  of 
fraud.  What  those  clear  marks  of  fraud  upon  the  face 
of  those  documents  were,  is  not  stated  with  sufficient 
particularity,  in  order  to  a  correct  comprehension  of  their 
character.  The  court,  to  whom  this  objection  was  pre- 
sented, must  have  decided  upon  an  inspection  of  the  papers 
(probably  correctly);  but  whether  correctly  or  otherwise, 
this  court  cannot  now  inquire,  in  compliance  with  asser- 
tions altogether  vague,  and  pointing  to  no  specific  vice  in 
any  one  of  those  papers."^ 

§  13.  But  on  the  other  hand  it  is  held,  that  a  motion 
substantially  conformable  to  the  statute  is  sufiicient.2(a) 
And,  in  other  respects,  a  more  liberal  indulgence  has  been 
sometimes  allowed  to  the  applicant  for  a  new  trial.  Thus, 
where,  in  an  action  on  a  bond,  judgment  was  entered  for 
too  large  a  sum,  and  the  plaintiff  entered  a  remittitw  for 
the  excess,  and  one  of  the  judges,  on  error,  thought  the 
excess  the  only  error,  and  another  thought  that  there  were 


1  Per  Daniel,  J.,  Thomas  v.  Law-        ^  Humphries  v.  Marshall,  13  lud. 
son,  21  How.  339.  609. 


(a)  In  California,  a  statement  of  the  gromids  of  a  motion  for  a  new 
trial  may  be  used  in  determining  the  appeal  from  the  denial  of  the  motion, 
but  not  in  determining  the  appeal  from  the  judgment,  unless  so  stipu- 
lated. Casgrave  v.  Rowland,  24  Cal.  457.  If  the  statement  and  notice 
of  a  motion  for  a  new  trial  are  defective,  in  not  specifying  the  grounds  of 
the  motion,  the  objection  should  be  taken  in  the  court  below ;  and,  if  it 
is  overruled,  the  court  above  can  then  review  the  matter.  Brady  v. 
O'Brien,  23  Cal.  244.  When  an  appeal  is  taken  from  an  order  refusing 
a  new  trial,  a  statement  of  appeal  need  not  be  filed  after  the  order  is 
made,  but  the  statement  used  in  the  court  below  on  the  motion  will  be 
sufficient.     Walden  v.  Murdoch,  23  Cal.  540. 


32  THE    LAW    OF    NEW    TRIALS.  [CII.  II. 

Other  errors,  and  the  third  was  incapacitated  to  sit  hy 
reason  of  interest,  a  new  trial  was  granted.'     So,  where 
the  judi^cs  who  composed  a  court  had  all  hcen  commis- 
sioned suhsequently  to  a  verdict,  taken  by  a  former  court, 
of  murder  as  to  one  defendant,  and  manslaughter  as  to 
others,  which  former  court  became  vacant  by  the  death  of 
all  its  judges,  pending  a  motion  for  a  new  trial,  on  the 
ground  that  the  verdict  was  against  evidence  and  against 
law;  held,  the  new  court  would  not  award  sentence  as  to 
those  defendants  who  asked  for  a  new  trial,  and  would 
not  hear  evidence,  as  to  what  opinion  on  the  motion  for  a 
new  trial  the  former  court  had  formed,  and  confidently 
expressed  to  an  officer  of  the  court,  but  not  pronounced 
from  the  bench  ;  and  a  new  trial  was  accordingly  granted, 
at  the  election  of  the  defendants.-     And  it  is  sometimes 
held,  that,  in  a  statement  for  a  new  trial,  the  evidence 
may  simply  be  referred  to,  and  need  not  be  contained  in 
the  statement  itself.^     So,  wdiere  the  construction  of  a 
written  instrument  is  in  question,  as  a  point  of  law,  and 
the  court  are  satisfied  that  this  was  the  only  evidence 
relied  on;  the  presumption  in  favor  of  the  verdict  will 
not  prevent  the  granting  of  a  new  trial."*     So,  where  it 
ai)pears  from  the  certificate  of  the  judge  below,  that  he 
intended  to  make  up  a  case,  but  none  comes  up  with  the 
record,  the  court  above  will  grant  a  new  trial .'^ 

§  14.  "With  reference  to  the  rule,  above  stated,  that  the 
whole  of  the  matter  in  relation  to  which  objection  is  made 
must  be  set  forth  in  the  application  for  a  new  trial;  in  a 
late  case  in  Massachusetts  (where  the  form  of  application 
to  the  Supreme  Court  for  a  new  trial  is  by  hill  of  exeep- 
iions),  the  whole  evidence  being  reported  as  a  part  of  the 

•  McNutt  V.  Lancaster,  9  S.  6c  M.        «  Nichols  v.  State  Bank,  3  Yerg. 

570.  lf'~- 

2  United  States  v.  Harding.  Wal-  ^  The  State  v.  Powers,  3  Hawks, 
lace.  Jr.  127.  37G. 

3  Dickinson  v.  Van  Horn,  9  Cal. 
207. 


CH.  II.]         GROUNDS   OF   NEW    TRIAL — HOW    STATED.  33 

exceptions,  Bigelow,  C.  J.,  remarked:  That  it  could  not 
"  be  laid  down  as  a  rule  that  a  case  cannot,  under  any 
circumstances,  be  brought  up  in  this  way ;  but,  where  all 
the  evidence  in  the  case  is  plainly  insufficient  to  warrant 
a  verdict  for  the  plaintiff,  if  the  whole  of  it  is  believed, 
and  taken  with  all  the  inferences  which  may  be  drawn 
from  it,  and  the  jury,  nevertheless,  find  a  verdict  for  the 
plaintiff",  it  may  be  proper  to  correct  the  error  on  ex- 
ceptions."^ 

§  15.  Many,  perhaps  most,  of  the  cases  already  referred 
to  in  this  chapter,  have  arisen  on  bills  of  exceptions. 
With  more  particular  reference  to  the  form  of  a  bill  of 
exceptions,  as  a  recognized  technical  process  for  the  cor- 
rection of  errors,  it  may  be  added,  though  at  the  risk  of 
some  repetition,  that  such  bill  must  precisely  specify  the 
errors  complained  of,  and  the  decision  excepted  to.-  l^o 
question  is  to  be  considered,  unless  it  be  necessarily  and 
clearly  presented  by  the  exceptions.^  Otherwise,  where 
the  form  of  proceedings  is  by  writ  of  error,  such  writ  will 
be  dismissed.*  And  the  assignment  of  errors  cannot  en- 
large the  bill  of  exceptions.'  So  a  decision,  overruling  a 
motion  for  a  new  trial,  made  "  because  the  verdict  was 
contrary  to  law,  and  because  the  damages  were  excessive," 
will  be  deemed  correct  in  the  Supreme  Court,  if  the  evi- 
dence given  on  the  trial  is  not  brought  before  it ;  or  if  it 
is  not  shown  that  testimony  was  erroneously  admitted  or 
excluded ;  or  if  the  instructions  to  the  jury  do  not  appear. 
Even  though  the  court  assigned  an  insufficient  reason  for 
overruling  the-  motion.^  So  it  is  held,  that  a  refusal  to 
grant  a  motion  for  a  new  trial,  because  the  verdict  was 
against  the  evidence,  cannot  be  assigned  as  error,  when 

'  Policy  V.  Lenox,  &c.,  4  Allen,  ^  Smith  v.  Mitchell,  6  Geo.  456  ; 
330.  Perth,  &c.  v.  Condit,  1  N.  J.  659; 

*  6  Geo.  227.  Allaire  v.  Hartshorne,  ib.  665. 

'  Page  V.  Smith,  25  Maine,  256.         '^  Dyer  v.  Hatch,  1  Pike,  339. 

*  "Weathers  v.   Dorster,  6    Geo. 
237;  Moran  v.  Green,  1  N.  J.  563. 

3 


34  THE    LAW    OF   NEW    TRIALS.  [CII.  II. 

the  whole  evidence  is  not  stated  to  he  contained  in  the 
hill  of  exceptions.^  So,  even  if  it  be  a  sufficient  excep- 
tion, that  the  verdict  was  contrary  to  law  and  evidence ; 
yet  the  evidence  must  be  taken  and  considered  as  a  whole ; 
any  particular  defect  ought  to  be  specially  assigned.-  So 
it  is  not  sufficient  to  state  matter,  rendering  it  probable 
that  improper  evidence  may  have  been  received,  but  the 
evidence  itself  nmst  be  stated.^  So  it  is  not  sufficient  for 
exceptions  to  state  that  "the  witness  was  objected  to,"  and 
was  admitted,  without  stating  any  cause  of  objection.'* 

§  16.  And  the  facts  upon  which  an  objection  to  evidence 
is  founded,  must  appear  in  the  bill  of  exception,  affirma- 
tively ;  even  where  proof  of  the  facts  is  necessary  to  legal- 
ize the  evidence  objected  to.^  Unless  the  ground  of  objec- 
tion to  evidence  is  stated,  the  court  will  not  reverse  the 
judgment,  if  the  evidence  could  have  been  legal  for  any 
purpose.^  So  exceptions  to  the  charge  of  a  judge  should 
specify  what  is  alleged  to  be  erroneous,  and  a  general  ex- 
ception to  tlic  whole  charge  is  irregular,  and  may  be  dis- 
regarded by  the  appellate  court.^ 

§  17.  It  is  held  in  Isew  York,  that  a  bill  of  exceptions 
must  be  signed  and  sealed,  and  the  error-book  produced 
on  the  argument  must  contain  a  copy  of  the  bill,  with  the 
signatures  of  the  judges,  or  the  clerk's  certificate  that  it 
was  signed  by  them.^  It  should  also  give  a  plain  and 
concise  statement  of  the  facts  which  present  the  question 
of  law;  and  not  set  forth  the  evidence  in  detached  and 
scattered  parcels.  Otherwise,  every  doubt  about  facts 
should  be  turned  against  the  party  excepting.^ 

»  Grani^or  v.  Warrington,  3  Gil-  "  Glidden  v.  Dunlap,  28  Maine, 

man,  299?  Hughes  I'.  Ellison,  5  3Iis.  379.  .  ^t   t   ».^o 

-J  10.  ^  Moran  v.  Green,  1  N.  J.  562. 

z'milebrant  v.  Brewer,  5  Tex.  ^  n,.  ,  ^^   ^    ,«^ 

5(;g  '  Oliver  v.  Phelps,  1  N.  J.  597. 

3  The  State  v  Clark.  12  Ired.  151 ;  *■  liadclifl"  v.  Khan,  5  Denio,  234. 

Moran  v.  Green,  1  N.  J.  oG2.  ^  Price  v.  Powell,  3  Comst.  323. 


CH.  11.]         GROUNDS   OF   NEW    TRIAL — HOW    STATED.  35 

§  18.  A  motion  for  a  new  trial  may  be  amended  by  the 
insertion  of  new  grounds.'  But  a  bill  of  exceptions, 
allowed  by  a  judge  of  the  court  below,  cannot  be  amended 
without  his  consent,  even  bj^  agreement  of  parties ;  because 
injustice  might  be  thereby  done  to  such  judge.^  So  a  bill 
of  exceptions  cannot  be  amended  upon  a  certificate  with- 
out consent,  after  argument  and  submission  of  the  case  to 
the  court ;  especially  where  the  efiect  is  merely  to  obtain 
a  new  trial.^ 

§  19.  A  writ  of  error  will  be  dismissed,  unless  it  appear 
affirmatively  that  the  bill  of  exceptions  was  tendered  and 
signed  within  the  time  prescribed  by  the  statute.^ 

§  20.  Instructions  to  the  jury  are  no  part  of  the  record, 
unless  made  so  by  a  bill  of  exceptions.' 

§  21.  ]^or  affidavits  and  other  papers  copied  into  a 
record,  unless  incorporated  into  the  bill  of  exceptions.^ 

§  22.  So  a  question  of  costs  is  not  open  upon  a  bill  of 
exceptions,  unless  the  objection  appear  in  the  exceptions, 
although  appearing  in  the  bill  of  costs,  to  which  the  ex- 
ceptions refer.'' 

§  23.  So  papers  introduced  at  the  trial  must  be  either 
copied,  or  specifically  referred  to,  by  the  bill  of  exceptions, 
in  order  to  make  a  part  of  such  bill.^  And  the  prevailing 
rule  is,  that  the  court  above  cannot  properly  take  them 
into  consideration,  if  merely  referred  to.' 


1  Moore  v.  Ulm,  34  Ga.  565.  ^  Edwards  «. Patterson, 5  Gilmau, 

'  Ashley  v.  Root,  4  Alleu,  504  ;  126  ;  Petty  v.  Scott,  ib.  209. 
Piigg"m3  V.  Brown,  12  Geo.  271.  ^  Richardson  v.  Curtis,  2  Gray, 

*  Johnson  v.  Conillard,  4  Allen,  497. 
446.  ^  Hatch  b.  Potter,  2  Gilman,  725. 

<  Justices,  &c.  V.  Barrington,  6        ^  Wymanr.Wood,  25Maine,436; 

Geo.  578.  Wadlington  v.  Gary,  7  S.  &  M.  522; 

5  Roberts  ?).Ward,  8  Blackf.  333.  Corey  v.  Russell,  3  Gilman,  366. 


86  THE   LAW    OF   NEW    TRIALS.  [ciI.  II. 

§  24.  Upon  the  same  prineiplc,  the  court  above  will  not 
notice  a  question  of  variance,  unless  it  appears  by  the  bill  of 
exceptions  that  the  question  was  raised  in  the  court  below.* 

§  25.  But  an  agreed  statement  of  facts  will  be  consi- 
dered as  a  part  of  the  record,  when  made  so  by  bill  of  ex- 
ceptions.2  And  the  rule  in  question  is  not  construed  with 
unreasonable  strictness.  Thus,  where  a  bill  of  exceptions 
stated  evidence  given  by  the  plaintiff  and  defendant  re- 
spectively, naming  the  witnesses,  and  detailing  their  tes- 
timony, and  then  stated  that,  "  no  farther  testimony  being 
offered,  the  plaintiff  asked  the  following  instructions," 
&c.,  and  concluded  by  praying  "that  this  bill  of  excep- 
tions, containing  all  the  facts  of  the  case,  be  signed,"  &c. ; 
it  was  held,  that  these  statements  excluded  the  idea,  that 
other  testimony  was  given  at  the  trial  than  that  which 
appeared  by  the  bill  of  exceptions.^  So  it  is  held  that  a 
new^  trial  will  be  granted,  if  depositions  are  improperly 
admitted  wdiich  contain  evidence  material  to  the  issue, 
although  the  record  does  not  show  that  they  were  all  the 
evidence  offered.^  So  the  bill  of  exceptions,  taken  on  the 
trial  of  an  action  against  the  sureties  on  the  official  bond 
of  a  postmaster,  set  forth  that  the  plaintiffs  offered  in  evi- 
dence, "  a  certain  instrument,  being  the  bond  annexed  to 
the  petition  or  information  in  this  cause,  being  an  au- 
thentic copy  of  a  bond  signed  by  "W.  as  principal,  and  the 
defendants  as  sureties,"  &c.,  and  that  the  court  rejected 
the  evidence.  Held,  that  it  appeared,  by  the  bill  of  excep- 
tions, that  the  paper  offered  in  evidence  was  legally  admis- 
sible, and  that  the  judgment  rejecting  it  was  erroneous,  and 
must  be  reversed.^ 

§  26.  AVhile  the  application  for  a  new  trial  is  required 
specifically  to  set  forth  the  grounds  of  objection  to  the 

'  Hard  V.  Brown,  18  Vt.  87.  «  Woodruff  tJ.  Luflin,  4  Pike,  527. 

»  Acheson  v.  Sutliff,  18  Ohio,  122.        ^  United  States  v.  Wilkinson,  12 
3  Everett  t. Clements,  4  Eug.478.     IIow.  U.  S.  246. 


CH.  II.]        GROUNDS   OF  NEW   TRIAL — HOW   STATED.  37 

verdict ;  on  the  other  hand,  it  is  not  open  to  be  controlled 
or  contradicted  by  other  evidence.  Thus,  in  New  York, 
where  the  verdict  has  been  set  aside  by  the  court  at  a 
general  term,  and  a  new  trial  ordered,  on  the  ground  that 
a  deposition  was  admitted,  without  sufficient  proof  of  the 
deponent's  absence  from  the  State ;  the  court  will  not 
allow  evidence  to  be  produced  at  bar  or  to  a  referee,  on 
motion  to  vacate  the  order  for  a  new  trial,  to  prove  the 
deponent's  absence.^ 

§  27.  Contrary  to  the  prevailing  rule  above  stated, 
where  a  case  was  sent  to  the  Supreme  Court  of  ISTorth 
Carolina  on  a  particular  point,  the  court,  discovering  other 
material  points,  declined  to  decide  the  point  sent  up,  and 
awarded  a  new  trial.^ 

§  28.  It  has  been  already  stated  (§  1)  that  a  new  trial 
is  granted  for  grounds  dehors  the  record.  Arrest  of  judg- 
ment^ on  the  other  hand,  is  always  for  causes  appearing  on 
the  record.  It  is  sometimes  held,  that  a  motion  in  arrest 
of  judgment,  and  a  motion  for  a  new  trial,  may  be  filed 
at  the  same  time,  and  the  court  may  first  act  upon  either. 
(See  ch.  1,  §  22.)  Also,  that  a  new  motion  for  a  new  trial 
may  be  made  after  an  unsuccessful  motion  to  arrest  judg- 
ment.^ But,  where  there  was  a  judgment  on  default,  and 
inquest  of  damages  ;  and  the  defendant  then  came  in  and 
moved  in  arrest  of  judgment  and  for  a  new  trial :  it  was 
held,  that  the  only  motion  he  could  make  was  to  set  aside 
the  inquest.*  And  the  general  rule  seems  to  be,  that  an 
application  for  a  new  trial  comes  too  late,  after  a  motion 
in  arrest  of  judgment  has  been  overruled.^  The  latter 
motion  assumes  that  the  verdict  is  right  ;^  supersedes  the 

'  Fry  V.  Bennett,  4  Duer,  651.  ^  Hipp  v.  Ingram,  3  Tex.  17 ;  11 

2  Cowan  V.  Green,  3  Miirph.  5G9.  Mis.  116. 

3  Pope  v.  Latham,  1  Pike,  06.  '  McComas  v.  The  State,  11  Mis. 
Uewell».Blandford,  7Dana,472.  116. 

5  Marion,&c.u.Lomax,  7  lQd.406. 


38  THE    LAW    OF    NEW    TRIALS.  [CII.  11. 

former;'  or  affinns  the  verdict.-  (See  ch.  1,  §  22.)  But  this 
rule  applies,  only  where  the  party  has  knowledge  of  the 
fact  on  which  he  grounds  his  motion  for  a  new  trial,  at 
the  time  of  moving  in  arrest  of  judgment.^a) 

§  29.  We  have  also  (ch.  1,  §  7)  referred  to  the  application 
for  a  new  trial  as  a  subject  of  error,  technically  so  called, 
in  connection  with  the  point  of  discretion.  In  the  present 
connection  it  may  be  repeated,  with  more  special  reference 
to  ivrits  of  error,  that  the  practice  is  very  diverse  in  diiFer- 
ent  States,  upon  the  question  whether  the  action  of  infe- 
rior courts  on  motions  for  new  trial  is  revisable  on  error  ;* 
or  whether  only  an  abuse  of  the  discretion  of  the  court, 
if  even  that,  can  be  assigned  as  error.* 

§  30.  In  Alabama,  if  a  party,  after  the  grant  of  a  new 
trial  on  condition  that  he  pays  the  costs,  without  comply- 
ing with  the  condition  sues  out  a  writ  of  error  to  reverse 
the  judgment,  it  is  a  waiver  of  his  right  to  the  new  trial.^ 
So,  if  a  party  moves  for  a  new  trial,  but,  without  await- 
ing the  action  of  the  court,  prosecutes  a  writ  of  error  to 
the  Sux)reme  Court,  where  the  judgment  is  affirmed;  the 
primary  court  has  no  longer  the  poAver  to  grant  his  mo- 
tion.^ So,  in  Pennsylvania,  it  seems  that  a  party  who 
brings  a  writ  of  error,  after  tendering  a  bill  of  exceptions, 
but  before  he  has  obtained  the  judge's  signature  to  the 

'  Smith  V.  Portor,  5  Ind.  429.  «  Martin  v.  IIi!j;,L,nns,  23  Ala.  775; 

2  Chrismaii  v.  Mclnc,  0  Ind.  487;  Ilerhcr  ;'.  The  Stale,  7  Texas,  G'J. 
Marion,  etc.  v.  l.oniax,  7  ib.  400.  ^  Brazelton  v.  Jenkins,  1  Morris, 

3  Mason  v.  Pahnerton,  2  Carter,  15;  Schoeffler  v.  State,  n  Wis.  823. 
117;  M' Kinney  v.  Springer,  6  Ind.  ^  Edwards  v.  Lewis,  18  Ala.  494. 
453.  '  Walker  v.  Hale,  16  Ala.  20. 

(a)  Where  a  new  trial  was  ordered,  and  had,  and  judgment  rendered, 
and  afterwards  the  order  reversed ;  held,  the  judgment  on  the  new  trial 
was  thercV)y  vacated,  and  the  prevailing  party  could  not  avail  himself  of 
it.     Bigby  v.  Powell,  15  Geo.  91. 


CH.  II.]         GROUNDS   OF  NEW    TRIAL — HOW    STATED.  39 

bill,  thereby  waives  his  exceptions.'(a)  So,  in  Missouri, 
where  there  is  a  judgment  on  a  verdict,  and  no  motion  to 
set  aside  the  verdict  and  grant  a  new  trial  in  the  court 
below,  the  Supreme  Court  will  not  disturb  the  judgment 
for  errors  committed  in  the  course  of  the  trial,  although 
they  were  excepted  to,  unless  a  motion  is  afterwards  made 
to  set  aside  the  verdict  for  those  errors.^  The  Illinois 
statute,  authorizing  the  refusal  to  grant  new  trials  to  be 
assigned  for  error,  has  no  application  to  criminal  cases.' 

•  Mecse  v.  Levis,  13  Penn.  384.  3  Martin  w.The  People,  13 111.341. 

2  Higgins  V.  Breen,  9  Mis.  497. 

(a)  In  Pennsylvania,  the  term  ei-ror  is  applied  to  sucli  exceptions  or 
objections  as  are  ordinarily  made  the  ground  of  a  bill  of  exceptions  or 
motion  for  a  new  trial.  An  assignment  of  error  in  the  admission  or  rejec- 
tion of  evidence  must  contain  a  copy  or  the  full  substance  of  the  bill  of 
exceptions  ;  otherwise  the  Supreme  Court  will  not  notice  it.  Schwenk  v. 
Montgomery,  26  Penn.  281.  Irregularity  in  swearing  and  impanelling 
the  jury  below  must  be  noted  in  the  exceptions,  or  it  will  not  be  noted 
above.  Quinn  v.  Woodhouse,  29  Penn.  333.  Admissions  made  at  the 
trial  become  evidence  ;  and,  when  stated  in  the  charge  to  have  been 
made,  must  be  taken,  on  error,  to  have  been  true,  unless  the  evidence 
brought  up  on  exception  contradicts  them.  McNair  v.  McLennan,  24 
Penn.  384.  It  is  the  duty  of  the  plaintiff  in  error,  to  furnish  the  court 
with  all  the  evidence  in  the  case,  which  can  elucidate  the  points  raised 
by  the  assignments  of  error.  If  he  does  not  do  so,  the  presumption  will 
be  that  there  is  no  error.  Himblewright  v.  Armstrong,  25  Penn.  428. 
When  no  objection  was  made  to  a  release,  signed  by  all  the  mortgagees 
excepting  one,  and  reciting  the  assignment  of  his  interest  by  that  one  to 
one  of  the  others  ;  it  will  be  presumed  that  such  assignment  would  have 
been  shown,  had  objection  been  made.  Devling  v.  Little,  26  Penn.  502. 
A  verdict  was  given  for  the  plaintiff,  subject  to  the  opinion  of  the  court 
on  the  whole  case.  Held,  there  was  no  point  reserved,  and  the  judgment 
was  affirmed.  Clark  v.  Wilder,  25  Penn.  314.  If  a  point  of  law  is  to  be 
reserved,  it  must  be  done  by  stating  on  the  record  the  facts  on  which  it 
arises.  Irwin  v.  Wickersham,  25  Penn.  316.  In  every  case  where  a 
general  verdict  is  given,  subject  to  a  point  reserved,  the  question  of  law 
thus  reserved  must  be  stated,  and  the  facts  on  which  it  arises  must  be 
either  admitted  on  the  record  or  found  by  the  jury.  Wilson  v.  Steamboat, 
&c.,  25  Penn.  317. 


40 


THE   LAW    OF   NEW    TRIALS. 


[CIL  III. 


CHAPTER  III. 

GROUND    OF   NEW   TRIAL  — HARMLESS   ERROR  — 
SUBSTANTIAL  JUSTICE. 


1.  Party  must  have  been  injured. 

2.  Erroneous  ruling  of  the  court. 
G.  Admission  or  rejection  of  evi- 
dence. 

7.  Jury. 

8.  Surprise. 

9.  New  evidence,  &:c. 

10.  Limitation  of  the  rule — it  mui^t 
appear  ih.?i.ino  injury  has  been  done. 


11.  Substantial  justice  done. 

12.  Erroneous  rulings. 

13.  Errors  in  relation  to  evidence. 

14.  Verdict  against  evidence. 

15.  Newly-discovered  evidence. 

16.  Surprise. 

17.  Damages. 

18.  Limitations  of  the  rule. 


§  1.  It  is  the  general  rule,  that  a  new  trial  will  not  be 
granted  for  an  entirely  harmless  error. ^{a)  More  especially 
where  there  was  no  motion  for  a  new  trial  in  the  court 
below.^  A  bill  of  exceptions  must  show  some  error  preju- 
dicial to  the  party  excepting.^  It  does  not  lie  to  correct  a 
mere  theoretical  error.*  It  is  said,  "motions  for  new  trials 
are  addressed  to  the  sound  judicial  discretion  of  the  court, 
and  ought  never  to  be  granted  except  to  subservie  the  pur- 


'  "Warren  v.  Williams,  52  Maine, 
343  ;  McKay  v.  Leonard,  17  Iowa, 
5G'J ;  The  .lustices,  ifcc.  v.  Plank 
Road  Co.,  15  Geo.  39;  Boon  v. 
Boon,  29  Geo.  134;  Aslop  v.  Magill, 
4  Day,  42 ;  i\Iarshall  v.  Morris,  IG 
Geo.  3G8 ;  Pate  v.  Spotts,  G  Munf. 
394;  Carey  v.  Callan,  G  B.  Mon.  44; 
The  Governor  v.  Campbell,  17  Ala. 


566;  per  Sedgwick,  J.,  Brazier  v. 
Clapp,  5  Mass.  10. 

2  Ricks  v.  The  State,  16  Geo. 
GOO. 

3  State  V.  Cowan,  7  Ired.  239  ; 
Fuller  V.  Ruby,  10  Gray,'S85;  State 
«. Frank,  5  Jones,  384;  State  u.Pike, 
20  N.  H.  344. 

*  Per  Morgan, J., Munro  ^.Potter, 
34  Barb.  3Gi. 


(a)  A  writ  of  error  will  not  lie  to  reverse  a  judgment  on  account  of 
an  error  in  favor  of  the  party  applying.  Sterret  v.  Creed,  2  Ilam.  343 ; 
Trabue  v.  M'Kettrick,  4  Bibb,  180  ;  Hughes  v.  Stickucy,  13  Wend.  280  ; 
Henry  v.  Smoot,  Minor,  18  ;  Covey  v.  The  State,  4  Port.  186  ;  Hammitt 
V.  Bullett,  1  Call,  5G7.  Nor  where  the  plaintiff  sustained  no  injury  from 
the  error.     Overley  v.  Paine,  3  J.  J.  Marsh.  717. 


en.  III.]      GROUNDS   OF  NEW   TRIAL — HARMLESS   ERROR.  41 

poses  of  substantial  justice."^  Thus,  under  the  (Georgia) 
act  of  February  20, 1854,  as  amended  December  12, 1859, 
the  court  is  not  required  to  grant  a  new  trial  in  any  case, 
for  an  immaterial  error.^  So,  where  a  bill  of  exceptions, 
to  an  order  of  court  granting  a  new  trial,  showed  that  the 
court  gave  a  bad  reason  for  directing  a  new  trial,  but  also 
that  the  motion  was  made  upon  several  grounds,  which 
were  sufficient  if  true  ;  held,  the  action  of  the  court  below 
would  be  presumed  correct.^  And  a  new  trial  will  not  be 
granted,  where  a  different  verdict  could  not  stand.*  So 
it  is  no  ground  for  a  new  trial,  that  the  court  refused  to 
allow  a  claim  of  recoupment,  when  the  same  amount  was 
allowed  under  a  difi'erent  form.^  So,  where,  on  a  motion 
for  a  new  trial,  an  affidavit  of  a  juror  was  erroneously 
stricken  from  the  files,  but  it  appeared  to  have  worked  no 
injury  or  prejudice  to  the  party  complaining ;  held  no 
ground  for  a  new  trial. ^  So,  in  an  action  for  entering  a 
house  and  killing  a  dog,  the  defendant  cannot  object  that 
no  damages  are  assessed  for  the  unlawful  entry.''  So, 
where  a  defendant,  after  a  judgment  coram  non  Judice, 
moves  for  a  new  trial,  when  on  the  facts  he  is  entitled  to 
go  without  day  ;  the  plaintifl"  cannot  complain  of  the 
order  granting  such  inferior  relief.^  So,  if  a  defendant 
makes  two  defences  to  the  same  claim,  one  of  which  is 
sustained  by  the  verdict,  it  is  immaterial  whether  the 
other  has  been  correctly  or  incorrectly  determined.^  So, 
when  a  suit  has  been  regularly  prosecuted  to  judgment, 
and  substantial  justice  has  been  done,  the  parties  are  not 
entitled  to  have  it  retried,  at  the  expense  of  the  public, 
and  to  the  delay  of  other  suitors,  although  both  join  in 
the  application.^*'   'Nor  will  a  new  trial  be  granted  in  order 

'  Per  Sanford,  J.,  Gold  B.Ives,  29  s  Brush  v.  Keeler,  34  Conn.  499. 

Conn.  123.  6  Hall  v.  Robison,  25  lov^a,  9. 

2  Morton  «.  Pearman,  30  Ga.  281.  7  Bishop  v.  Fahay,  15  Gray,  Gl. 

3  McCreary«.Cockrill,3  Kaus.37.  «  Garpentier  v.  Small,  35  Cal.346. 
^  Hegeler  v.  Henckell,  27   Cal.  s  Wolcott  v.  Smith,  15  Gray,  537. 

491.  10  Nichols  V.  Sixth,  10  Bosw.  2G0. 


42  THE    LAW    OF   NEW    TRIALS.  [CIL  III. 

to  allow  a  technical  correction.^  So  it  is  no  ground  ibr  a 
new  trial,  that  a  demurrer  to  a  special  plea  was  errone- 
ously sustained,  when  the  facts  alleged  in  such  plea  might 
have  been  given  in  evidence  under  other  pleas.-  So,  if,  in 
an  action  to  recover  for  breaking  and  entering  the  plain- 
tiff's close,  consisting  of  a  beach  and  upland,  it  appears 
that  the  plaintiff  has  no  sufficient  title  to  the  beach  to 
enable  him  to  maintain  his  action  for  a  trespass  thereon, 
and  a  general  verdict  is  rendered  for  the  defendant ;  a 
new  trial  will  not  be  granted,  unless  it  affirmatively  ap- 
pears that  the  case  was  submitted  to  the  jury  under  im- 
proper instructions  in  reference  to  his  right  to  recover  for 
a  trespass  upon  the  land  to  which  he  established  a  title.^ 

§  2.  Erroneous  instructions,  either  favorable  or  not  inju- 
rious to  the  losing  party,  are  no  ground  for  a  new  trial.^ 
Thus,  to  instruct  the  jury  upon  the  law  governing  a  state 
of  facts  not  developed  in  the  evidence.^  So  with  a  remark 
of  the  judge  favorable  to  him,  although  irregular  and 
indicating  the  judge's  private  opinion.^  So  in  case  of  a 
request  for  erroneous  instructions,  made  by  the  prevailing 
party,  but  favorable  to  the  losing  party.^  Thus,  where,  on 
an  indictment  for  murder,  a  new  trial  was  moved  for  on 
the  a'round  of  an  erroneous  charge  to  the  triors  as  to  the 

<  Devenclorfi).Wert,42Barb.227.  Ired.  rA~i ;   Mansfield  v.  Wheeler, 

2  Powell  V.  Asten,  30  Ala.  140.  2:?  AVend.  79  ;  Freeman  v.  Kankin, 

3  Tappaii  fl.Burnliam,  8  Allen, G5.  8  Sliep.  446;  Potter  v.  Hopkins,  25 
^  Fagan  v.  Williamson,  8  Jones,  Wend.  417;  Bosley  v.  Chesapeake, 

433;    ilook  v.  Craghead,  35  Mis.  &c.,  3  Gill,  and  J.  450;  Selleck  v. 

380  ;  Mirick  v.  Hemphill,  1  Hemp.  Turnpike  Co.,  13  Conn.  453;  Cam- 

179;  Mori'ord  ».  Woodworth,  71nd.  den,    6cg.    v.   Belknap,    21    Wend. 

83  ;  Davis  v.  Jenney,  1  Met.  224  ;  354  ;  People  v.  Scott,  6  Mich.  287  ; 

Smith  «.  Page,  2  Salk.  G44;  Hobbs  Armstrong  v.   Piersou,  8   Clarke, 

V.  Outlaw,  (5  .Jones,  174;  Depeyster  29;  Darling  v.  Dodge,  3G  ]Maiue, 

?;.  The  Columbian,  t^'c,  2  Caines,  370;     Salmons    v.    Koundtree,    24 

85  ;    Gardner  v.   Clark,  17   Barb.  Ala.  458 :  McCoy  v.  The  State,  15 

538;  Means  11.  Means,  7Bich,  533;  Geo.  205;  Ncwberg  v.  Farmer,  1 

McCready  v.  South,  Szc,  2  Strobh.  Wash.  Terr.  209. 

35(J  ;   Maston   v.  Fanning,  9   Mis.  ^  Qnint  v.  Ophir,  4  Nev.  304. 

305  ;    Kathbone  v.   City,    &c.,    31  «  McDougall  v.  Shirley,  18  N.  H. 

Conn.  208  ;   Price  v.  Evans,  4  B.  108. 

Mon.  380  ;    Katliff   v.   Huntly,   5  ^  Preston  v.  Lcightou,  G  Md.  88. 


CH.  III.]      GROUNDS   OF   NEW    TRIAL — HARMLESS    ERROR.  43 

competency  of  a  juror;  but  the  motion  did  not  state 
whether  the  jurjanan  was  put  upon  the  triors  by  the 
State  or  by  the  prisoner,  nor  the  bill  of  exceptions  show 
what  the  charge  was :  held,  the  court  above  could  not  say 
whether  the  charge  was  favorable  or  adverse  to  him,  and 
therefore  could  not  order  a  new  trial. ^  So,  in  an  action 
upon  a  note  given  as  a  renewal,  to  which  the  defence  of 
usury  was  set  up,  the  judge  charged,  that  the  second  note 
was  good,  though  given  on  a  usurious  agreement;  whereas 
the  proper  instruction  would  have  been,  that  the  second 
note  was  avoided  by  usury,  but  the  plaintiff  might  still 
recover  upon  the  original  loan,  if  not  usurious.  The 
second  note  being  given  only  for  the  amount  of  the  loan 
with  interest ;  held,  a  mere  verbal  error,  and  a  verdict  for 
the  plaintiff  should  stand.* 

§  3.  An  erroneous  instruction  is  held  no  ground  of  new 
trial,  if  the  verdict  is  correct  under  the  law  and  facts.' 
So  it  was  no  ground  of  new  trial,  that  a  question  of  law 
was  left  to  the  jury,  which  they  decided  correctly.^  Or  a 
fact  on  which  the  admissibility  of  evidence  depends,  if 
the  party  excepting  could  not  be  injured  by  it.^  So  if  it 
be  erroneously  left  to  the  jury  to  determine  the  amount 
of  damages,  which  they  return  correctly.®  So  where  the 
jury  were  instructed  that  they  could  give  consequential 
damages,  not  laid  in  the  declaration,  but  the  verdict 
plainly  did  not  award  such  damages.^  So,  in  a  suit  for 
damages  for  flowing  land,  certain  instructions  were  given, 
and  others  asked  and  refused,  all  based  on  the  assumption 
that  no  actual  damage  had  been  done  to  the  plaintiffs  in 

'  Bowie  V.  State,  19  Geo.  T.  •  Stokes  v.  Arey,  8  Jones,  66 ; 

2  Mansfield  v.  Wheeler,  23  Wend.  Marshall  v.  Fisher,  1  ib.  Ill  ;  Simp- 

79.  son    V.    Norton.    45    Maine,    381 ; 

'  Hanna  v.  Renfro,  32  Miss.  125  ;  Woodman  v.  Chesle}%  39  ib.  45  ; 

Welborn  v.  Spears,  ib.  138;  Welch  Great,  &c.  v.  Buzzell,  ib.  173. 

V.  Butler,  24  Geo.  445  ;  Myrick  v.  ^  State  v.  Dick,  1  Wins.  No.  2,  45. 

Hicks,  15  Geo.  155;  Pritchard  v.  «  Howard    v.   Browne,  8    Shep. 

Myers,  11  S.  &  M.  169  ;  Cochrane  385. 

V.  Winburn,  13  Tex.  143.  ?  Zeigler  v.  Braddy,  11  Rich.  557. 


44  THE    LAW    OF   NEW    TRIALS.  [CII.  III. 

flowing  the  laiul,  and  that  they  were  entitled  to  nominal 
damages  only.  The  jury  returned  a  verdict  for  the  plain- 
tiffs for  $200.  Held,  on  this  finding,  all  these  instruc- 
tions became  immaterial.*  So  two  actions  were  brought 
ao"ainst  the  same  defendant  for  the  same  assault,  one  by 
the  person  assaulted,  a  female,  the  other  by  her  aunt,  with 
a  -per  quod  servitiura  amisit.  On  the  trial  of  the  latter,  the 
counsel  for  the  plaintiff  gave  notice  that  the  former  would 
be  abandoned,  and  withdrew  the  record.  The  defendant 
claimed  that  only  nominal  damages  could  be  given  for  loss 
of  service,  but  the  judge  charged  otherwise,  and  the  jury 
gave  their  verdict  accordingly.  Held,  although  the  in- 
struction was  wrong,  substantial  justice  having  been  done, 
there  should  not  be  a  new  trial.^  So,  in  an  action  for  libel, 
the  defence  being  set  up,  that  the  charge  consisted  in  a 
complaint  made  to  a  church  of  which  the  plaintiff  was  a 
member  ;  the  judge  instructed  the  jury  that  there  was  no 
evidence  of  express  malice,  which  under  the  circumstances 
was  necessary  to  be  proved.  No  such  evidence  was  offered, 
but  there  was  slight  evidence  to  sustain  the  action.  Held, 
a  new  trial  should  not  be  granted  on  the  ground  of  error 
in  the  instruction,  "for  it  would  be  idle  to  send  a  cause 
to  a  new  trial  upon  evidence  which,  if  received,  would  not 
be  sufficient  to  support  a  verdict.^ 

§  4.  And,  in  general,  where  a  new  trial  is  moved  for  on 
the  ground  of  misdirection,  calculated  to  raise  an  imma- 
terial issue ;  if  justice  has  been  done,  and  there  was  no 
evidence  by  which  the  parties  would  have  been  misled, 
the  verdict  will  stand.*  So  though  the  charge  is  wrong, 
but  the  jury  disregard  it  and  render  a  correct  verdict.* 
So,  in  a  clear  case,  though  the  judge  slightly  err  in  taking 


'  Eastman  v.  Amoskcag,  44  N.        *  Prcscott  v.  Johnson,  8  Flor. 
H.  14.3.  391. 

2  Edmonson  v.  Macliell,  2  T.  R.  4.        s  Tilman  v.  Stringer,  26  Geo.  171. 

3  Kcniiiigtou  V.  Cougdon,  2  Pick. 
310. 


en.  III.]      GROUNDS   OF  NEW   TRIAL — HARMLESS   ERROR.         45 

down  the  testimony.^  More  especially,  where  justice  is 
done,  a  new  trial  will  not  bo  granted  for  the  omission  of 
instructions  which  were  not  requested.- 

§  5.  And  a  new  trial  will  not  be  granted  for  refusal  of 
an  instruction  which  would  not  have  changed  the  verdict.^ 
Or  for  the  omission  to  give  instruction  upon  a  matter  of 
law  not  requested,  when  such  omission  could  not  have 
worked  any  prejudice.^  Or  an  erroneous  ruling,  when  the 
facts  cannot  be  changed,  and  the  facts  proved  are  conclu- 
sive in  support  of  the  judgment.'  Or  an  incorrect  ruling, 
rendered  immaterial  by  the  finding  of  the  jury.^  Or  one 
which  had  no  effect.^  Or  irrelevant  instructions  not  tend- 
ing to  mislead  the  jury  or  prejudice  the  party's  rights.^ 
So  a  new  trial  will  not  be  granted,  where  the  court  in- 
structed the  jury  that  a  certain  notice,  in  fact  sufficient, 
was  insufficient ;  provided  the  other  evidence  in  the  case 
was  sufficient  to  annul  the  effect  of  such  notice.'  So, 
where,  in  an  action  of  trover,  an  actual  conversion  is 
shown,  upon  the  other  facts  of  the  case,  and  a  demand 
and  refusal  are  relied  upon  for  that  purpose ;  it  can  fur- 
nish no  ground  for  setting  aside  the  verdict,  that  the  court 
refused  to  instruct  the  jury,  in  relation  to  the  sufficiency 
of  the  evidence  of  a  demand,  that,  under  the  circum- 
stances, a  demand  and  refusal  would  not  be  evidence  of  a 
conversion.^*'  And,  where  it  appears  that  the  plaintiff  has 
not  a  sufficient  title  to  sustain  the  action,  he  cannot  main- 
tain a  bill  of  exceptions,  without  showing  affirmatively 
that  erroneous  instructions  were  given  as  to  his  rio-ht  to 
recover  upon  proof  of  title.^^ 

»  Sarah  v.  State,  28  Geo.  576.  ^  Marcly  v.  Shults,  29  K  Y.  (2 

*  Wakeman  v.  Robinson,  1  Bing.     Tiff.)  346. 

213.  7  Ilubby  V.  Stolies,  22  Tex.  217. 

3  Wilkinson  v.  Griswold,  12  S.  &  «  McCall  v.  Seevcrs,  .5  Ind.  187. 

M.  6G9  ;  Douglas  v.  McAlister,  3  ^  Findav  v.  Parker,  24  Geo.  333. 

Cranch,  298;   Hoyt  v.   Dimou,  5  '«  AValcott  y.  Keith,  2  Fost.  196. 

Day,  479.  "  Tappan  v.  Burnham,  8  Allen, 

*  Olnev  V.  Chadsey,  7  R.  I.  224.  65. 
5  Brown  v.  Bowen,  30  N.  Y.  519. 


46  THE    LAW    OF   NEW    TRIALS.  [CU.  III. 

§  G.  The  same  rule  is  applied  with  reference  to  the 
wroiifj^ful  admission  or  rejection  of  evidence  ;^  and  the  cases 
which  illustrate  this  particular  application  of  it  are  very 
numerous  and  various.  As  where,  in  general,  the  evi- 
dence is  not  material,  or  important,  or  is  superfluous, 
the  same  facts  being  proved  by  other  unquestionable  tes- 
timony; or  conceded.'^  Unless  it  be  proved  that  injury 
resulted.^  Or  where  it  cannot  possibly  afi'ect  the  result.'* 
Or,  more  especially,  where  evidence  wrongly  admitted 
was  favorable  to  the  ^ixviy  objecting.^  It  is  held  that  the 
admission  of  incomjpeteiit  evidence  is  no  ground  for  a  new 
trial,  unless  it  appears  that  it  probably  influenced  the 
verdict.^  So  it  is  held  that  judgment  will  not  be  reversed 
on  the  ground  that  interested  witnesses  were  allowed  to 
testify,  if  under  the  present  practice  they  would  be  com- 
petent at  another  trial,  or  if  no  exception  was  taken, 
and  their  evidence  not  very  important.^  So,  where  a 
contract  sued  on  sufliciently  expresses  the  consideration 
on  its  face,  a  new  trial  will  not  be  granted,  for  error  in 
admitting  evidence  of  the  actual  consideration  in  sup- 
port of  the  contract.^    So  where  wrong  evidence  is  ad- 

'  See  Blain  v.  Stewart,  2  Clarke,  »  Tucker  v.  Peaslec,  BO  N.  II.  1G7; 

378  ;  Grosvernor  t).  Atlantic,  &c.,  1  Browning   «.  State,  33   Miss.    47; 

Bosw.  4C1) ;  Arclulale  v.  Moore,  19  Skowliegau  v.  Cutter,  52   Maine, 

111.  565  ;  Hunt  v.  Bennett,  4  E.  D.  509. 

Smith,  G47  ;  Wise  v.  State,  2  Ivans.  *  Lowrey  v.  Steward,  3   Bosw. 

419.  505  ;  Pccplcs  v.  Smith,  8  Rich.  90  ; 

2  Sharp  I).  Johnson,  22  Ark.  79  ;  Bird  v.  The  State,  14  Geo.  43  ;  Van 
Metton  V.  Cobb,  21  Tex.  539  ;  Eck-  Cort  t\  Van  Cort,  4  Edw.  Ch.  621 ; 
ert   V.   Cameron,    43    Penn.    120;  7  Barb.  5H5 ;  5  Ind.  286  ;  Irwin  i;. 
Bragg  «.  Boston,  9  Allen,  54  ;  Dim-  Treii;o,  22  Penn.  368. 
mick  V.  Milwaukee,  18  Wis.  471  ;  ^  pju-ker  v.  Foster,  26  Geo.  465 ; 
Sibley  t\  Lcllingwell,  8  Allen,  584;  Lumday   -v.   Thomas,    ib.   537;  10 
Cogan«.  Frisby,  36  Miss.  178;  The  ib.   208;   Ellis  v.  Smith,  ib.  253; 
Wayne,  &c.  v.  Berry,  5  Ind.  280  ;  Smith  v.  Kerr,  1  Barb.  155  ;  Smith 
Lee  V.  Baldwin,  10  Geo.  208  ;  Bea-  v.  Ilarmanson,  1  Wash.  6. 
gles  V.  Scftou,  7  Ind.  490  ;  Carr  v.  g  Ames  v.  Potter,  7  R.  I.  265  ; 
Gale,  1  Curl.  384;  Campbell  c.  Wil-  Bridier  v.  Yulee,  9  Flori.  481  ;  Pat- 
son,  6  Te-K.  379  ;  Lockctt  v.  Mims,  ton  v.  Gregory,  21  Tex.  513  ;  Field 
27  Geo.  207;  Robson  v.  .Tones,  ib.  v.  Avery,  17  Wis.  672, 
266;  Clement  r.  Brooks,  13  N.  II.  '  ]\IcCall  v.  Seevers,  5  Ind.  187; 
92;  McCall  y.  Brock.  5  Strobh.  119;  Carol  ('.  I\Iayo,  8  Dana,  198. 
School,  A:c.    v.  Bragdon,   3   Fost.  ^  Howard  v.  Holbrook,  9  Bosw. 
507.  237. 


CH.  III.]      GROUNDS   OF   NEAY   TRIAL — HARMLESS   ERROR.         47 

mitted,  but  the  case  turns  upon  the  construction  of  a 
paper.^  So  it  is  held,  that,  if  illegal  testimony  be  ad- 
mitted, a  new  trial  will  not  be  granted  on  that  account, 
provided  there  was  sufficient  other  evidence  to  autliorize 
the  verdict. °  Thus,  though  it  is  incompetent  for  the 
plaintiff  to  prove  his  own  declarations,  yet,  if  the  facts 
are  proved  by  other  legal  evidence,  the  admission  of  such 
evidence  is  held  no  ground  for  a  new  trial. ^  IS'or  the  re- 
jection of  testimony,  which,  if  admitted,  would  have 
proved  every  fact  in  issue,  and  made  the  decision  of  the 
court,  on  the  whole,  right.^  JSTor  the  admission  of  a  de- 
position which  does  not  tend  to  prove  the  issue  ao-ainst 
the  excepting  party. ^  Nor  the  rejection  of  an  unimportant 
deposition.^  So  suppression  of  a  portion  of  a  depo- 
sition, on  motion,  before  trial,  is  no  cause  for  a  new  trial 
on  the  ground  of  surprise,  when  the  portion  suppressed 
could  have  been  of  no  benefit  to  the  party  moving  for  the 
new  trial.^  So,  where  there  are  several  counts  in  the 
declaration,  and  a  general  verdict  is  given,  the  court  will 
not  set  it  aside,  because  the  evidence  which  would  support 
one  count  was  received  as  applicable  to  another,  to  which 
it  was  inapplicable.^(rt)  Nor  because  a  copy  of  the  statute 
of  another  State,  which  was  improperly  certified,  was  ad- 
mitted at  the  trial,  if  it  appear  by  a  copy,  properly  certified, 

'  Churcliill  V.  Corker,   25  Geo.        ^  Dodge  v.  Greeley,  31   Maine, 

479.  343. 

2  ]\Iurpliy  V.  The  Justices,  &c.,        ^  Hill  v.  Meyers,  43  Peun.  170. 
11  Geo.  331  ;  Stephens  v.  Crawford,        ^  Hirsch   v.  Patterson,  23   Ark. 
1  Kelly,  574.  113. 

3  Bradford?).  Pearson,  13 Mis.  71.        ^  ciark  v.  Pendleton,  20  Conn. 
*  The  State  v.  Lawson,  14  Ark.     495. 

114. 

(a)  Where  there  are  objectionable  counts,  the  defendant  should  either 
demur  to  them,  or  ask  the  court  to  instruct  the  jury  to  discriminate  be- 
tween the  good  and  bad  counts.  But,  where  error  is  allowed  after  motion 
for  a  new  trial,  if  there  be  evidence  enough  to  support  the  verdict,  appli- 
cable to  the  good  counts,  the  court  will  not  award  a  new  trial.  Sexton 
V.  Brock,  15  Ark.  345. 


48  THE   LAW    OF   NEW    TRIALS,  [CH.  III. 

that  tlie  former  copy  was  a  correct  ono.^  So  the  erroneous 
admission  of  a  deed,  under  which  both  parties  chiim  title, 
is  no  o-round  for  a  new  triah-  Xor  of  testimony  which 
the  jury  were  instructed  to  and  apparently  did  disregard.^ 
So  a  new  trial  was  refused  to  the  defendant,  where  the 
testimony  was  wrongly  admitted  to  contradict  a  witness 
for  him,  but  such  witness  proved  nothing  beneficial  to  the 
defendant.  The  court  say  :  "  The  error  was  innoxious  in 
so  far  as  this  case  is  concerned."*  So  the  court  above 
refused  to  grant  a  new  trial,  where  substantial  justice  was 
done,  although  the  court  below  had  improperly  admitted 
a  parol  award  in  evidence.^  And  erroneous  admission  of 
evidence,  which  is  at  the  time  inadmissible,  is  cured  by 
the  subsequent  introduction  of  evidence  which  renders  it 
admissible.^  As  where  a  paper  not  authenticated  was 
admitted,  but  the  proper  proof  afterwards  supplied.^  Or 
where  evidence  was  admitted  of  the  contents  of  a  written 
instrument,  upon  the  assurance  of  counsel  that  he  would 
subsequently  show  the  destruction  of  such  paper;  which 
evidence  was  afterwards  produced.^  So  the  erroneous 
rejection  of  a  witness  is  cured  by  subsequently  admitting 
him  to  testify.^  And  the  same  rule  is  applied,  where, 
even  in  a  criminal  case,  an  attested  deed  is  allowed  to  be 
proved  by  other  evidence  than  that  of  the  subscribing 
witness ;  such  witness  being  afterwards  called  by  the  de- 
fendant, and  testifying  to  the  circumstances  attending  the 
execution  of  the  deed.'"  Or  in  case  of  the  admission  of 
wrong  evidence,  to  prove  a  fact  admitted  in  the  pleadings, 
or  otherwise  properly  proved."     Or  for  the  admission  of 

1  McDugald   V.  Smith,   11    Ired.        «  Scott  v.  State,  30  Ala.  503. 
576.  '  State   v.   Douglass,    7   Clarke, 

2  Rhines  v.  Bainl,  41  Pcnn.  256.      413. 

3  Smith   V.  Whitman,   G   Allen,  ^  state  v.  Black,  6  Jones,  510. 
562;    Beck   ij.  Cole,  16   Wis.  1)5;  »  Morrison    v.     ISIcKirnon,     13 
Thomas  v.  Henderson,  27  Ala.  523  ;  Flori.  552;  Commonwealth  «.  Ohio, 
Winter  v.  Phelan,  ib.  049.  &c.,  1  Grant's  Cases,  329. 

^  Wright  V.  Cumpsty,  41  Penn.  '"  Com.  v.  Castles,  9  Gray,  121. 

102,  111.  "  Brown  v.  liobinson,    25   Geo. 

5  McMuUen  v.  Mayo,  8  S.  i&  M.  144;  Fore».  Williams,  35  Miss.  533. 
298. 


CII.  III.]      GROUNDS   OF   NE^y    TRIAL — HARMLESS    ERROR.  49 

parol  evidence  of  a  letter,  if  confirmed  by  an  admission 
of  the  party.^  Or  where  the  admissions  of  a  [)erson  were 
received  as  those  of  a  partner,  without  objection;  but 
subsequent  proof  was  oftered,  that  he  had  ceased  to  be 
such.^  So  no  exception  lies,  for  the  want  of  evidence  of 
the  negotiability  of  bonds  in  the  State  where  the  bond  in 
question  arose ;  if  the  Secretary  of  State  certifies  to  the 
court,  that,  from  the  statutes  of  that  State  filed  in  the 
executive  office,  bonds  are  there  negotiable.^  So,  where, 
on  the  trial,  exception  is  taken  to  the  sufiiciency  of  the 
proof  of  the  contract  sued  on,  and  subsequently  the  defect 
is  supplied  by  other  evidence;  such  objection  cannot  be 
used  on  a  motion  for  a  new  trial,  upon  a  case.''  So,  though 
there  be  a  doubt  whether  the  evidence  of  a  discredited 
witness  has  been  properly  excluded;  a  new  trial  will  not 
be  granted,  if  the  fact  to  which  he  testified  is  admitted 
l)y  the  answer  of  the  opposite  party.^  So,  where  a  fact, 
which  the  defendant  calls  a  witness  to  j^rove,  has  already 
been  proved  by  the  plaintifi",  the  admission  of  the  witness 
is  no  cause  for  setting  aside  the  verdict.®  Nor  will  a  new 
trial  be  granted,  on  account  of  the  exclusion  of  a  depo- 
sition, though  erroneous,  where  no  injury  resulted,  as  the 
minutes  of  counsel,  containing  the  testimony  of  the  wit- 
ness on  a  former  trial,  went  to  the  jury,  and,  for  aught 
which  aj'jpeared,  contained  all  that  was  material  in  his 
deposition.^  So  in  a  motion  for  a  new  trial,  because  an 
official  letter  from  the  commissioner  of  the  patent  office, 
on  an  official  matter,  was  admitted  as  evidence  tending  to 
prove  the  time  of  making  the  invention:  there  is  some 
analogy  to  justify  its  admission,  after  proving  its  signa- 
ture, as  official  correspondence,  and  also  as  a  declaration 
made  at  the  time,  concerning  a  particular  'act,  as  part  of 
the  res  gcstce ;  and,  though  its  competency  ma^'^^  be  ques- 

'  Williams  v.  Brickell,  37  Miss.  *  Bronson  v.  Wiman,  10  Barb. 

683.  406. 

2  Walton  v.  Payne,  18  Tex.  60.  s  Emory  v.  Phillips,  23  Mis.  499. 

3  Grace  v.  Hannah,  6  Jones,  94.  ^  Knowles  v.  Dow,  3  Fost.  387. 

7  Allen  V.  Blunt,  3  W.  &IL  121. 


50  THE    LAW    OF   NEW    TRIALS.  [CH.  III. 

tionable,  if  subsequent  evidence,  in  the  progress  of  the 
case,  rendered  it  unnecessary  to  i)rove  the  fact  for  which 
it  was  oftered,  a  new  trial  will  not  be  granted  on  account 
of  its  admission.^  So  it  is  held  that  no  exception  lies  for 
the  admission  of  a  perjured  witness,  unless  it  appear  that 
without  such  evidence  a  difierent  verdict  would  have  been 
rendered.-  ^S'or  for  the  rejection  of  the  opinion  of  a  wit- 
ness bearing  on  the  question  of  damages,  when  there  was 
sufficient  positive  evidence  to  sustain  the  verdict,  unless 
it  appear  that  injustice  has  been  done.'  Nor  where  the 
demandants  showed  a  good  title  prior  to  that  under  which 
the  tenant  claimed,  thus  rendering  immaterial  all  ques- 
tions relating  to  a  mortgage  given  to  the  tenant."  Nor 
where  incompetent  evidence,  offered  without  objection, 
was  struck  out  by  the  judge  after  the  arguments  to  the 
jury  had  commenced.^  Nor  for  application,  by  the  court, 
of  evidence  properly  admitted  for  some  purpose,  to  prove 
a  fact,  for  the  proof  of  which  it  was  not  proper,  but  which 
it  was  unnecessary  to  prove."  Nor  for  the  admission  of 
evidence  of  a  usage,  when,  by  an  express  contract  proved, 
the  same  liability  is  established.^  Nor  where  a  paper  did 
not  go  to  the  jury,  but  they  remembered  its  contents.^  Or 
where  evidence  is  rejected,  but  the  jury  are  afterwards 
instructed  to  consider  the  fact  as  proved.^  Or  for  the  ad- 
mission or  rejection  of  evidence  to  prove  a  presumption 
of  law ;  as  the  sanity  of  a  grantor.^"  Or  of  evidence  against 
a  point  fully  proved.'^  So,  where  the  books  of  the  plaintiff 
were  made  testimony  by  the  defendant,  and  the  judge 
afterwards  erroneously  excluded  them,  and  the  plaintiff' 
moved  for  a  new  trial  on  that  ground  alone ;  it  was  held 

"  2  W   &  M.  121.  ^  Emmons  v.  Lord,  6  Shep.  351. 

2  Ilichanlson  v.  Roberts,  25  Geo.  »  state  v.  Pike,  20  N.  II.  ^44. 

671      See  State  v.  Whit,  5  Jones,  ^  Morehead  v.  Brown,  6  Jones, 

324.'  367. 

»  Rcnaud  I'.  Peck,  2  ITilt.  137.  '"  Deannond    v.   Dearmond,    12 

«  Glover  v.  Ilolbrook,  5  Allen,  Ind.  455  ;  Hutchinson  v.  Moody,  6 

ir^-f  Shepl.  393. 

•^Selkirk  v.  Cobb,  13  Gray,  313.  "  Smith  v.  Northern,  &c.,  1  Met. 

6  Jones  V.  Gilbert,  13  Conn.  507.  (Ky.)  575. 


en.  III.]      GROUNDS    OF   NEW    TRIAL — HARMLESS   ERROR.         51 

that  the  court  could  not  reverse  the  judgment  on  that 
ground,  as  the  plaintift'  couhl  not  make  liis  hooks  testi- 
mony again,  the  defendant  objecting.^  So  the  inability 
of  a  witness  to  answer  an  improper  question  cures  the 
error  of  allowing  it  to  be  put.^ 

§  7.  A  new  trial  will  not  be  granted,  on  account  of  the 
misconduct  of  a  juror ^  which  has  been  no  injury  to  either 
party .2  Thus  a  juror  stated  that  "he  had  formed  an 
opinion  from  talking  with  neighbors,  which,  however, 
would  not  influence  his  verdict ;  that  he  had  an  opinion, 
whether  the  stories  he  had  heard  were  correct  or  not." 
He  was  challenged  for  cause,  and  the  challenge  was  over- 
ruled. Held,  that  in  view  of  the  difficulty  of  deciding 
upon  the  degree  of  strength  of  opinion  which  constitutes 
ground  of  principal  challenge,  or  to  the  favor,  &c. ;  of  the 
facts,  that  the  juror  in  question  did  not  serve  on  the  jury, 
was  not  challenged  to  the  favor,  and  no  peremptory  chal- 
lenge appeared  to  have  been  wasted  upon  him:  the  error, 
if  any,  was  no  injury  to  the  defendants,  and  no  ground 
for  a  new  trijil.'*  So  where  a  juror,  contrary  to  statute, 
was  chosen  and  drawn  more  than  twenty  days  before  the 
sitting  of  the  court  at  which  the  venire  was  returnable ; 
but  no  fraud  nor  tampering  with  the  jury  was  suggested, 
nor  any  prejudice  to  the  losing  party  arising  from  this 
cause :  held,  the  objection,  appearing  on  the  record,  would 
not  be  ground  of  error,  and  was  not  ground  for  a  new 
trial.= 

§  8.  The  same  rule  is  applied  to  the  suggestion  of  sur- 
2)7ise,  as  ground  for  a  new  trial.  Thus  a  witness,  on  the 
trial  of  an  action  of  ejectment,  stated  that  he  had  reco- 
vered possession  of  the  land  from  the  lessors,  and  had  sold 
it  to  one  under  whom  the  defendant  claimed,  which  evi- 

'  Brown  v.  Williams,  4  Humph.  ^  Xewell  v.  Aver,  .32  Maine,  334. 

23.  ■•  Scboeffler  i'." State.  3  Wis.  823. 

^  Lewis  V.  Baker,  5  Rawle,  114;  ^  Amherst  v.  Hadley,  1  Pick.  38. 
Allen  V.  Rostaiu,  11  S.  &  R.  362. 


52  THE    LAW    OF    NEW    TRIALS.  [CII.  III. 

(leiieo  Avas  rejected  for  want  of  the  record.  The  verdict 
was  for  the  plaintift",  and  tlie  defendant  moved  for  a  new 
trial  on  liis  affidavit  that  he  never  knew  of  that  recovery 
till  it  was  spoken  of  by  the  wntness ;  that  ho  had  been 
but  six  years  in  the  country;  that  he  had  found  those  he 
purchased  of  in  quiet  possession  ;  and  that  there  was 
nothing  to  direct  his  attention  to  the  record,  which  w\as 
in  another  county.  Held,  though  these  facts  hardly 
amounted  to  sufficient  diligence,  yet  a  new  trial  might 
have  been  allow^cd,  liad  nothing  else  appeared  ;  but  as  the 
inference  from  all  the  rejected  evidence  was,  that  the 
record  w^ould  operate  against  the  defendant,  and  he  failed 
to  shoAv  how  it  would  operate  for  him,  the  new^  trial  must 
be  denied ;  the  bare  possilnlity  that  the  record,  if  pro- 
duced, might  help  him,  not  being  sufficient.^ 

§  9.  The  same  principle  is  applied  to  questions  of  neidy- 
discovered  evidenced  So  also  to  incidental  and  interlocu- 
tory proceedings  in  a  trial.  Thus,  if  the  plaintiff  fails 
to  offer  evidence  sufficient  to  maintain  the  action,  it  is 
ground  of  motion  for  nonsuit ;  but  if  such  evidence  is 
afterwards  given,  a  new^  trial  will  not  be  granted.-''  On 
the  other  hand,  no  exce})tion  lies  to  a  ruling,  that  the  evi- 
dence introduced  by  the  plaintiff  will  not  support  the 
action,  if  by  a  special  verdict,  afterwards  taken  at  his 
request,  the  jury  find  against  him  a  fact  essential  to  his 
case.*  So  where  to  a  declaration  in  assumpsit  the  defend- 
ant pleaded  the  general  issue  and  the  statute  of  limita- 
tions ;  and  the  plaintiff  moved  to  strike  out  the  latter 
plea,  on  the  ground  that  it  was  not  filed  in  season,  which 
motion  was  overruled,  and  the  cause  was  tried  on  both 
issues,  which  were  found  for  the  defendant :  held,  a  new 
trial  should  not  be  granted,  for  the  plaintiff  had  suffered 
no  injury  by  the  refusal  of  his  motion.^     So,  although  in 

•  Harris  v.  Price,  4  Dana,  79.  *  Bowditcli,    &c.    v.    Buffum,    2 

2  Bullock  T.  Beach,  .3  Verm.  73.      Gray,  ooO. 

3  Barrick  i'.  Austin,  21  Barb.  241.         ^  (jross  v.  Hall,  4  Md.  42G. 


CH.  III.]       GROUNDS   OF   NEW    TRIAL — HARMLESS   ERROR,        53 

general  a  judgment  will  be  reversed,  if  exceptions  to  a 
plea  have  been  improperly  allowed,  yet,  if  the  cause  was 
tried  upon  the  matters  embraced  in  the  plea,  notwith- 
standing the  exceptions,  and  the  jury  have  been  instructed 
in  reference  to  them,  and  have  passed  upon  them  as  if  they 
were  properly  in  issue,  so  that  the  defendant  has  suffered 
no  injury  from  the  ruling  of  the  court;  a  new  trial  will 
be  denied.'  So,  if  the  object  of  a  new  trial  is  merely  to 
nonsuit  the  plaintiff,  for  a  defect  which  might  be  cured 
by  amendment ;  it  will  not  be  granted.^  So,  a  demurrer 
to  a  declaration  being  sustained,  an  amendment  was  al- 
lowed, reserving  the  terms  for  future  consideration,  con- 
trary to  the  rule  of  court,  which  requires  payment  of  a 
term  fee;  but  the  exceptions  did  not  show  that  a  trial  was 
permitted  before  deciding  upon  such  terms,  and  conse- 
quently that  the  party  thereby  suffered  any  injury.  Xew 
trial  refused.^  So,  when  a  motion  for  a  new  trial  is  not 
drawn  up  for  some  weeks,  and  the  counsel  disagree  as  to 
some  of  the  rulings  ;  the  court  must  settle  the  differences, 
and  not  award  a  new  trial  on  account  of  them,  if  no  injus- 
tice seems,  on  the  whole  case,  to  have  been  done  by  the 
verdict.^  So  it  is  held,  that  an  erroneous  refusal,  to  allow 
a  party  to  open  and  close,  does  not  entitle  him  to  a  new 
trial,  in  the  absence  of  proof  that  he  was  prejudiced  by 
the  refusal.^ 

§  10.  It  is  obvious,  however,  that  the  question,  whether 
any  injury  has  resulted  from  the  error  relied  on  as  the 
ground  of  new  trial,  must  open  a  very  inconvenient  lati- 
tude of  inquiry,  unless  the  rule  above  stated  is  somewhat 
strictly  construed  in  favor  of  the  prevailing  party.  Ac- 
cordingly there  is  a  class  of  cases  which  hold,  that  the 
fact,  that  no  injury  has  accrued  to  the  losing  party  from 

'  McClenny  v.  Floyd,  10  Tex.  »  "W'eljber  v.  Davis,  5  Allen,  303. 

159.  4  Allen  v.  Blunt,  2  W.  it  M.  121. 

2  Gerbier  v.  Emery.  3  Wash.  Cir.  s  Bethea  v.  Prothro,  28  Geo.  109. 
413. 


54  THE    LAW    OF    NEW    TRIALS.  [CH.   III. 

tlic  error  ('(nnplaincd  of,  must  be  distlndhj  shoicn^  in  order 
to  prevent  ii  new  trial.     It  is  said,  witli  more  particidar 
reference  to  the  admission  of  incompetent  evidence,  "  It 
is  not  always  easy  for  the  court  to  distinguish  between 
the  force  and  effect  of  the  competent  and  incompetent 
evidence.     But  there  is  an  ol)jection  deeper  and  more  for- 
midable ;  it  arises  from  that  fundamental  rule  in  the  con- 
duct of  jury  trials,  that  it  is  as  much  the  province  of  the 
jury  to  ascertain  the  truth  of  the  facts  upon  competent 
evidence,  as  it  is  the  province  of  the  court  to  decide  upon 
the  competency  of  evidence,  and  generally  upon  the  rules 
of  law  by  which  a  jury  are  to  be  governed."^     Hence,  if 
improper  evidence  be  admitted,  a  new  trial  will  be  granted, 
unless  it  can  be  seen  that  such  evidence  could  have  had  no 
influence  on  the  verdict.^     More  especially,  judgment  will 
be  reversed,  when  illegal  evidence  is  admitted,  and  the 
other  evidence  is  not  sufficient  to  sustain  the  verdict.' 
And  although,  where  a  point  in  the  cause  is  clearly  proved 
by  competent  evidence,  and  found  by  the  jury,  a  new  trial 
will  not  be  granted  because  of  the  incidental  admission 
of  improper  and  not  very  important  evidence,  tending  to 
prove  the  same  point ;  yet  it  must  appear  very  satisfacto- 
rily that  the  verdict  must  and  ought  to  have  been  the 
same,  whether  the  questionable  evidence  was  admitted  or 
not.''     Or  that  a  verdict  the  other  way  would  be  set  aside 
as  against  evidence.^     So  it  must  be  clear  that  justice  has 
been  done,  and  there  must  be  little  reason  to  believe  a  dif- 
ferent result  would  ensue  upon  a  second  trial.^     And  the 
distinction  is  made,  that,  although  a  new  trial  will  not 
be  granted  on  a  case  made,  because  incompetent  evidence 
has  been  received,  if  it  has  not  affected  the  result ;  it  is 

'  Per  Shaw,  C.  J.,  Thorndike  «.  s  Tij^^j^^-^jj-e   ^    Boston,  1   Met. 

Boston.  1  j^Iet.  248.     Sec  Lynes  v.  243  ;  Kutzen  v.  Farr,  4  Ad.  &  El. 

State,  :3G   Miss.   CAI ;    Madden   v.  50;  Crease  v.  Barrett,  1  Cr.  iVI.  S:  R. 

State,  1  Kans.  840.  91!);  Wright  v.  Tatham,  7  Ad.  &,  El. 

2  Santillan  v.  Mooes,  1  Cal.  92.  330. 

3  Owen  V.  Jones,  14  Ark.  .502.  «  Barringer  m.  Nesl)it,  1  Sm.  &  M. 

4  Prince  v.  Siiepard,  9  Pick.  17rt;  22.     But  sec  the  Slate  v.  Allen,  1 
Tlioinpson  v.  Lothrop,  21  Pick.33G.  Hawks,  6. 


CH.  III.]      GKOUNDS   OF   NEW    TRIAL — HARMLESS    ERROR.         55 

otherwise  with  a  bill  of  exceptions.^  As  where,  in  an 
action  of  trespass,  it  was  a  material  question  whether  the 
defendant  had  notice  that  the  property  was  under  attach- 
ment, and  an  interested  witness  was  allowed  to  testify  to 
circumstances  which  indicated  such  notice ;  although  the 
verdict  for  the  plaintiff  was  sustained  by  other  evidence.^ 
So  the  case  must  be  clearly  and  indisputably  made  out 
without  the  objectionable  evidence,  or  a  new  trial  will  be 
granted,  although  the  referee,  before  whom  the  former 
trial  was  had,  report  that  in  making  up  his  decision  he 
rejected  this  improper  evidence.^  So  it  is  held,  that,  if  the 
testimony  of  an  incompetent  witness  has  been  admitted, 
the  verdict  will  be  set  aside,  notwithstanding,  at  a  subse- 
quent trial,  the  same  witness  would  be  competent.^  (See 
p.  35.)  And  the  same  rule  is  applied  to  the  erroneous  ex- 
clusion of  competent  evidence.  It  must  appear  beyond 
doubt  that  the  error  complained  of  neither  did  prejudice 
nor  could  have  prejudiced  the  party  against  whom  the 
error  was  made.  Hence,  where,  by  an  error  of  the  court 
below,  a  plaintiif  had  not  been  allowed  to  introduce  the 
first  item  of  her  testimony,  and  had  no  interest  therefore 
to  show  anything  which  might  avoid  the  proof  of  the 
other  side — proof  which,  though  apparently  fatal  to  her 
case,  even  though  the  error  had  not  been  made,  she  might 
possibly  have  avoided  but  for  the  error;  the  judgment  was 
reversed.^  So  statements  made  by  a  client  to  his  attorney, 
in  presence  of  a  third  person,  were  held  not  admissible 
upon  the  testimony  of  such  person  ;  but  the  same  witness 
testified  to  similar  declarations,  not  confidentially  made. 
Held,  the  former  evidence  was  admissible,  and  a  new  trial 
should  be  granted  for  its  exclusion;  that  the  party  was 
entitled  to  the  benefit  of  a  repetition  of  the  same  state- 
ments made  on  another  occasion,  and  also  of  the  peculiar 


'  Lothrop  V.  Wright,  24  Wend.  *  Doe  v.  President,  &c.,  7  Ind. 

221.  G41. 

2  21  Pick.  336.  5  Oeery  v.  Cray,  5  Wall.  795. 

3  Allen  V.  Way,  7  Barb.  585. 


56  THE    LAW    OF   NEW    TRIALS.  [CII.  III. 

formality  and  soloniiiity  which  attached  to  them  as  made 
to  a  leii'al  adviser.^  So  although  the  court  may  not  think 
the  verdict  unreasonable  in  amount  or  otherwise,  yet  a 
new  trial  will  be  granted,  if  the  jury  are  erroneously  in- 
structed upon  a  point  that  might  have  affected  their  ver- 
dict.- As  where  money  was  brought  into  court,  and  taken 
out,  ])ut  not  in  satisfaction,  and  a  balance  of  fourteen  cents 
and  four  mills  was  unpaid;  but  the  court  instructed  the 
jury  to  iind  for  the  defendant  if  the  defence  was  just,  even 
though  a  small  balance  remained  due.^  And  a  wrong  in- 
struction  is  held  to  be  a  ground  of  new  trial,  though  it  is 
not  certain  that  it  afiected  the  jury.'  The  distinction  is 
made,  that  a  new  trial  should  be  granted,  when  there  is 
reason  to  apprehend  that  the  instructions  inai/  have  misled 
the  jury  in  an  important  particular.  Otherwise,  when  it 
is  merely  conjectural  whether  any  misapprehension  has 
occurred  in  the  minds  of  the  jury,  and  especially  if  the 
matter  be  of  slight  im})ortance.^  And  the  more  stringent 
rule  is  sometimes  ado})ted,  that  the  court  above  will  j;re- 
same  injury  from  error  in  the  court  below,  uidess  the  record 
itself  rebuts  the  presumption,  and  shows  affirmatively  that 
no  injury  could  have  resulted."  That,  where  the  instruc- 
tions are  erroneous,  the  verdict  will  be  set  aside,  unless 
the  court  is  satisfied  that  under  correct  instructions  no 
other  verdict  could  rightfully  have  been  found. ^  It  should 
appear  to  be  morally  certain,  that  erroneous  instructions 
have  not  been  injurious,  before  the  party  aggrieved  can 
be  deprived  of  a  new  trial.'^(a)     "A  judgment  will  not  be 

'  Goddard  v.  Gardner,  28  Conn.  ^  Sherman  v.  Clianiplaiu,  itc,  31 

172.  Yt.  102. 

2  Yonge  V.  The  Mutual,  &c..,  1  «  Minis  v.  Sturdevant,  23  Ala. 
Cal.  353;  Tufts  v.  Seabury,  11  GG4;  Dave  ?j.  The  State,  22  Ala.  23. 
Pick.  140.                                 '  '  Noyes  v.  Shepherd,  30  ]\Iaine, 

3  Boyden  v.  Moore,  5  Mass.  >iCt~j.  173. 

1  Baldwin  v.  Peet,  22  Tex.  708.  «  Thacher  v.  Jones,  31  IVIaine, 

528. 

(a)  On  a  motion  for  a  new  trial  in  the  Supreme  Court  of  New  York, 
the  court  will  not  examine  the  decision  of  the  Circuit  Judge  against  the 


en.  III.]      GROUNDS    OF   NEW    TRIAL — HARMLESS    ERROR.        57 

reversed  on  account  of  an  erroneous  opinion  expressed  or 
decision  made  by  the  court,  where  it  clearly  appears  that 
the  error  did  not  and  could  not  liave  affected  the  verdict 
or  the  judgment.  But  this  very  position  implies  that  we 
are  to  look  beyond  the  letter  of  the  exception  into  the  case 
itself,  to  ascertain  what  the  effect  of  the  error  was."^  So 
a  new  trial  will  be  granted,  on  appeal  for  erroneous  in- 
structions, although,  in  the  opinion  of  the  appellate  court, 
the  verdict  was  right  on  both  the  law  and  the  evidence.^ 
Or,  although  a  verdict  may  be  in  accordance  with  the 
weight  of  evidence,  if  the  essential  points  in  dispute  were 
by  the  charge  withdrawn  from  the  consideration  of  the 
jury  .3 

§  11.  We  have  considered  the  general  proposition,  with 
its  qualifications,  that  a  new  trial  will  not  generally  be 
granted,  where  the  party  has  not  been  injured  by  the  result 
of  the  former  one.  Another  form  of  expressing  the  same 
rule  is  often  adopted,  namely,  that  a  verdict  will  not  gene- 
rally be  set  aside,  by  which  substantial  justice  has  been  done 
between  the  parties.  The  chief  distinction  between  these 
forms  of  expression  seems  to  be  this :  The  former  means, 
that  the  result  of  the  trial  would  have  been  the  same, 
though  the  error  complained  of  had  not  occurred ;  the 
latter,  that,  notwithstanding  the  error,  the  real  merits  of 
the  controversy  have  been  reached,  and  therefore  it  would 

1  Per  Sutherland,  J.,  Clarke  v.  »  Highland  Bank  v.  Wynkoop, 
Butcher,  9  Cow.  674.  Hill  &  Denio,  343. 

2  James  v.  Langdon,  7  B.  Mon. 
193;  Chandler  v.  Fulton,  10  Tex.  2. 

party  who  obtained  the  verdict,  unless  the  point  is  such  that,  when  cor- 
rectly determined,  it  would  render  the  new  trial  useless.  Elsey  v.  Met- 
calf,  1  Denio,  323.  In  Vermont,  where  a  case  comes  into  the  Supreme 
Court  upon  exceptions,  it  is  to  be  treated  as  though  upon  a  formal  writ 
of  error ;  and,  though  the  case  be  of  so  trifling  importance  that  a  new 
trial  would  be  refused  on  motion  or  petition,  yet,  if  error  have  intervened, 
the  judgment  must  be  reversed.     Fullam  v.  Cummiugs,  16  Verm.  697. 


58  THE    LAW    OF   NEW    TRIALS.  [CH.  III. 

l)c  unjust  to  revive  it  for  any  mere  teelmical  cause.'  Hence 
a  new  trial  cannot  be  had,  to  enable  a  party  to  avail  him- 
self of  a  legal  defence,  or  a  technical  objection,  where  it 
is  inequitable,  and  substantial  justice  has  been  done.^ 
There  should  be  strong  probable  grounds  to  believe,  that 
the  merits  of  the  case  have  not  l)een  fully  and  fairly  tried, 
and  that  injustice  has  been  done.^  "A  verdict  ought  not 
to  be  set  aside  for  a  slight  slip,  when  the  verdict  is  clearly 
right."*  More  especially,  where  a  very  trifling  amount  is 
in  controversy;  as  where,  in  an  action  on  a  bond  for  $113, 
payment  was  pleaded,  and  a  receipt  produced  for  $113,  in 
full  payment  of  the  bond ;  and  it  appeared  that,  at  the 
time  of  payment,  some  interest  was  also  due,  and  the 
verdict  was  for  the  defendant.  Held,  the  court  rightly 
refused  a  new  trial.-^  Upon  these  grounds,  it  is  held  that 
an  affidavit  for  a  new  trial  must  contain  a  positive  aver- 
ment of  merits.^  So,  to  entitle  a  party  to  invoke  the 
equitable  powers  of  the  court  to  grant  him  a  new  trial,  he 
must  not  only  show  a  sufficient  excuse  for  not  having  pur- 
sued his  ordinary  legal  remedy,  but  must  bring  liis  case 
within  those  equitable  rules  and  principles  which  govern 
the  granting  of  new  trials.^  And  the  rule  applies  equally 
to  a  finding  against  evidence,  or  against  the  instructions 
of  the  court,  or  under  misdirection  of  the  court. "^ 

§  12.  Numerous  cases  are  to  be  found,  illustrating  the 
application  of  this  general  principle  to  the  several  grounds 
upon  which  a  new  trial  may  be  claimed.    Thus,  as  we  have 

>  Georgia  v.  ScoU,  87  Ga.  94;  280;  Fanning  «.  McCrancy,  1  Mor- 

Union   Bank    v.   ]\riddlobrook,   33  ris,  398. 

Conn.  J»o  ;  Graham   r.  Houston,  4  ^  Wheeler  v.   Shields,   3    Scam. 

Dev.  233  ;  Allen  v.  Blunt,  2  W.  &  348. 

M.  131  ;  Gould  r.  White,  G  Fost.  »  Per  Parker,  C.  J.,  Prince   v. 

178;  Goodc  ».  Love,  4  Leigh,  033;  Sheiiard,  9  Pick.  183. 

Cartwriglit  v.  Carpenter,  7  How.  ^  Thompson  «.  Lemoyne,  5  Pike, 

(Miss.)  328;  Robinson  v.  State,  2  312. 

En;^  123  ;  Doc  v.  Tvler,  0  Bing.  ^  Elliott  v.  Leak,  4  Mis.  540. 

ncf ;  Hosford  V.  Wilson,  1  Taun.  ?  Miller  o.  Hall,  13  Te.x.  nm. 

12.      See  Marchman   o.   Todd,  l.">  ^  Leigh   v.  Hodges,  3  Scam.  15  ; 

Geo.  25.  King  v.  Hill,  2  Tayl.  211  ;  Gillett 

2  McConnell  v.  Strong,  11  Verm.  v.  Sweat,  1  Gilra.  475. 


CH.  III.]      GROUNDS   OF   NEW   TRIAL — HARMLESS   ERROR.        59 

already  suggested,  a  new  trial  ought  never  to  be  granted, 
notwithstanding  some  mistake,  or  even  misdirection,  by 
the  judge,  or  the  giving  or  refusing  of  irrelevant  instruc- 
tions, provided  the  court  is  satisfied  that  justice  has  been 
done;  that  a  new  trial  ought  to  produce  the  same  result ; 
that  the  verdict  is  conformable  to  law  and  evidence ;  and 
that  upon  the  evidence  no  other  verdict  could  properly 
have  been  found.^  More  especially,  where  the  erroneous 
instruction  could  not  have  influenced  the  jury  or  changed 
the  verdict.^  Or  where  the  jury  would  be  bound  in  law 
to  find  such  a  verdict  as  they  did  find.^  And  under  these 
circumstances  it  is  no  ground  of  new  trial  that  the  court 
gave  no  instruction  on  the  turning  point  in  the  case.*  So, 
when  the  question  of  facts,  on  which  alone  the  cause  de- 
pended, was  properly  submitted  to  the  jury,  an  error  of 
law  in  the  charge  of  the  judge  will  be  disregarded.^  So 
it  is  sometimes  held,  that  a  new  trial  will  not  be  granted, 
because  the  judge  has  allowed  the  wrong  party  to  begin, 
unless  injustice  is  shown  to  have  resulted  from  it.^  ISTor 
for  the  allowance  of  an  amendment  of  a  declaration  in 
tort,  by  adding  a  count  in  contract,  the  verdict  being  ren- 
dered under  such  instructions,  that  the  jury  must  have 
found  a  state  of  facts  which  would  support  either  count.^ 
Kor  for  the  reason  that  a  party  is  convicted,  by  a  general 
verdict,  where  there  are  several  good  and  bad  counts,  if 

'  Johnston  v.  The  State,  14  Geo.  Myers,  11   S.   &   M.  169  ;    7  Ind. 

55 ;   Arrington  v.   Cherry,  10  ib.  222  ;     Randall    v.    Parramore,     1 

429  ;  Harris  v.  Doe,  4  Blackf.  309  ;  Branch,  409  ;  3  Gilm.  202. 

Morton  v.  Lawson,  1  B.  Mon.  45 ;  2  Wood  v.  Wylds,  6  Eng.  754  ; 

Bolan  v.  Peeples,  1  Brev.  109  ;  In-  Wilkinson  v.  Griswold,  12  S.  &  M. 

graham  v.  S.  Carolina,  &c.,  3  Brev.  GG9  ;  Vanuxen  ?'.  Rose,  7  Ind.  222  ; 

522;  Graham  «.  Bradley,  5  Humph.  Greenup  v.  Stoker,  3  Gilm.  202  ;  2 

476  ;  Wylly  v.  King,  Geo.  Decis.,  W.  &  M.  121. 

Part  II.  7;  Princeton,  &c.  v.  Gu-  »  Duckett  v.  Cridef,  11  B.  Mon. 

lick,   1    Harr.    161  ;    Emanuel    v.  188. 

Cocke,  6  Dana,  212;  Thomas  v.  '  Sims  «.  Reed,  12  B.  Mon.  51. 

Tanner,  6  Monr.   52 ;   Howard  v.  ^  Stoddard  v.  The  Long  Island, 

Miner,    7  Shep.    325  ;    French   v.  &c.,  5  Sandf.  180. 

Stanley,  8  Shep.  512;  Freeman  v.  ^  Leete  v.  The  Gresham,  »fcc.,  7 

Rankin,  8  Shep.  446  ;  Reynolds  v.  Eng.  L.  &  Eq.  578.  See  chap.  12. 

Magness.  2  Ired.  26;  Jewett  ii.  Lin-  ?  Crane  r.  Lincoln,  2  Gray,  401. 
coin,   3   Shep.   116 ;    Pritchard  v. 


60  THE    LAW    OF    NEW    TRIALS.  [CII.  III. 

tliev  relate  to  the  same  offences,  to  whieli  the  same  puuisli- 
ment  api)lies.' 

So,  it'  no  injustice  seems,  on  the  whole  case,  to  have  been 
done  by  the  verdict,  the  court  will  not  allow  a  new  trial, 
though  the  counsel  believe  that,  in  his  argument,  he  ex- 
pressed a  wish  for  the  court  to  instruct  the  jury  on  some 
points,  and  it  was  not  done,  but  furnished  no  written  list 
of  the  instructions  desired,  nor  stated  verbally,  after  the 
charge  was  through,  and  before  the  jury  retired,  that  any 
point  had  been  omitted,  or  any  further  direction  was  de- 
sired.^ Xor  for  an  omission  of  the  court  to  instruct  the 
jury  on  abstract  or  irrelevant  questions,  which  did  not 
arise  on  the  evidence ;  or  upon  points  of  which,  in  the 
course  of  the  trial,  the  evidence  became  immaterial.^  So, 
Avhere  a  bill  of  exception  was  taken,  on  the  part  of  the 
plaintiff,  to  the  judge's  charge,  in  respect  to  a  notice  of  a 
special  matter,  and  it  appeared  that  the  jury  had  properly 
found  a  verdict  for  the  defendant  under  a  good  plea  in  bar; 
it  was  held,  that,  though  the  charge  was  erroneous,  the 
plaintiff  was  not  entitled  to  a  new  trial.*  So  a  new  trial 
will  not  be  granted,  because  instructions  of  the  court  were 
based  upon  an  assumption  of  facts,  if  the  jury  would  be 
bound  to  find  the  facts  as  assumed,  and  the  instructions 
are  correct.^  So,  where  the  ruling  or  the  judgment  is  right, 
a  wrong  reason  given  by  the  judge  for  his  decision  is  not 
ground  of  exception.^ 

§  13.  And  the  same  rule  applies  to  questions  of  evidence^ 
in  connection  with  the  rulings  or  instructions  of  the 
judge.  Thus,  although  the  construction  of  a  paper  was 
erroneously  submitted  to  the  jury,  yet,  if  they  decided 
correctly,  this  is  not  ground  for  a  new  trial. ^     Xor  that 

'  State  «.  Pace,  9  Rich.  Law,  355.  «  Gast  v.  Porter,  13  Penn.  533; 

2  Allon  V.  Blunt,  3  W.  &  M.  121.  Ellis  )'.  .Taraeson,  5  Shep.  235. 

3  Iliid.  J  Millikcn  v.  Tufts,   31   Maine, 
*  llayilou  V.  Palmer,  7  Hill,  385.  -197. 

5  Evans  v.  Spillman,  6  B.  Mon. . 
334. 


en.  III.]      GROUNDS    OP   NEW    TRIAL — HARMLESS    ERROR.         01 

the  judge  decided  a  question  which  should  liave  been 
submitted  to  the  jury,  if  he  decides  it  rightly.^     Thus, 
although  the  question  of  fraud  is  for  the  jury,  yet,  if  the 
judge  decide  that  upon  the  facts  there  is  no  fraud,  and 
the  testimony  would  not  authorize  a  jury  in  finding  fraud ; 
a  new  trial  will  not  be  granted.^     So,  where  the  plaintiff 
declared  for  the  value  of  labor  done  and  materials  fur- 
nished in  the  erection  of  a  grist-mill,  mill-house,  and  ap- 
pendages ;  and  the  proof  showed,  that  there  was  a  saw- 
mill built,  and  that  it  was  attached  to  the  grist-mill ;  and 
the  jury  included  in  their  verdict  the  value  of  the  labor 
and  materials  for  the  saw-mill:  held,  the  court  would  not 
disturb  the  verdict,  it  appearing  that  substantial  justice 
was  done,  and  the  jury  having  in  effect  found  the  saw- 
mill to  be  an  "appendage."^    So,  where  the  verdict  is  sub- 
stantially sustained  by  the  evidence,  the  judgment  will 
not  be  reversed,  though  evidence  has  been  improperly  ex- 
cluded."   So  a  new  trial  will  not  be  granted  because  a 
deposition  was  improperly  ruled  out  by  the  court  below, 
which,  if  admitted,  would  not  have  justified  a  verdict  in 
favor  of  the  party  offering  it.'     Nor  will  the  Supreme 
Court  reverse  a  judgment,  because  the  court  below  refused 
an  instruction,  which  was  correct  upon  the  facts  assumed, 
but  which  the  jury  negatived  by  their  verdict.^     Nor  a 
verdict  fully  sustained  by  the  evidence,  for  an  erroneous 
instruction.^     So,  in  an  issue  of  devisavit  vel  non^  the  court 
will  not  remand  a  cause  for  a  rehearing,  notwithstanding 
the  judge  announced,  at  the  close  of  the  testimony,  that 
his  mind  was  fixed  and  unalterably  made  up  upon  the 
merits  of  the  case,  and  arrested  the  argument  of  the  pre- 
vailing party  before  its  conclusion,  with  the  remark  that 

'  Greene  v.  Dingley,   11   Shep.  ^  Bohr  «.  Steamboat,  &c.,  7  S.  & 

131.  M.  715. 

2  McDonald  v.  Trafton,  3  Shep.  «  Patterson   v.  ]McChmahan,   13 

32o.  Mis.  507. 

»  Allen  V.  McNew,  8  Humph.  4G.  ^  McCall  v.  Seevers,  5  Ind.  187 ; 

*  Parsons  v.  McKibbin,   5   Ind.  14  Geo.  55 ;  13  Mis.  507. 
261. 


G2  TUE   LAW    OF   NEW    TRIALS.  [CII.  III. 

it  was  unnecessary;  where  the  appellate  court  are  satis- 
lied,  from  the  testimony,  that  justice  has  been  done; 
especially  if  the  provisions  of  the  will  furnish  intrinsic 
evidence  of  its  reasonableness,  and  the  court  and  jury,  on 
the  trial  below,  concurred  in  opinion,  both  as  to  the 
capacity  of  the  testator  and  the  fairness  of  the  will.' 

§  14.  So  it  is  held,  that  the  court  will  not  set  aside  a 
verdict  as  against  evidence^  because  they  might  upon  the 
evidence  have  arrived  at  a  different  result;  where  sub- 
stantial justice  has  been  done.^  Or,  as  is  sometimes  said, 
the  verdict  of  a  jury  upon  questions  of  fact,  or  the  judg- 
ment of  the  court  acting  in  place  of  a  jury,  will  not  be 
disturl)Gd,  unless  clearly  and  ixdpably  wrong.^  Thus,  where 
there  has  been  a  verdict  on  an  issue  of  fraud,  suggested 
by  a  creditor,  under  a  statute  for  the  relief  of  honest 
debtors;  a  new  trial  will  not  be  granted,  if  there  has 
been  evidence  on  both  sides,  and  no  rule  of  law  violated, 
nor  manifest  injustice  done,  although  there  may  appear  to 
have  been  a  preponderance  of  evidence  against  the  verdict.^ 
And  a  new  trial  will  not  be  granted,  because  the  verdict 
is  contrary  to  the  charge  of  the  court,  if  the  verdict  is 
according  to  law  and  evidence,  and  the  charge  against  it.' 

§  15.  A  new  trial  wnll  not  be  granted  for  newly-dis- 
covered evidence,  if,  admitting  such  evidence,  the  case  is 
still,  in  law,  what  the  jury  found  it.*' 

§  16.  Surprise  to  a  party,  arising  from  the  unexpected 
statements  of  a  witness,  who  had  been  twice  before  ex- 
amined in  the  case,  without  disclosing  the  facts  to  which 
he  now  testifies,  is  not  sufficient  cause  for  a  new  trial, 
when  the  verdict  is  justified  by  the  other  evidence  and 

'  Bcall  V.  Mann,  5  Geo.  45C.  ^  Welborn  v.  Weaver,    17  Geo. 

2  Gould  V.  "White,  6  Fost.  178.        2G7  ;   Van  Vacter  v.  Brewster,    1 

3  jMann  i-.  AVitbeck,  17  Barb.  ;388.     Smedes  &  Marsh.  400. 

*  Anuis  V.  Barker,  40  Geo.  170.  ''  Carr  v.  The  State,  14  Geo.  3o8. 


CH.  III.]      GROUNDS    OF   NEW    TRIAL — HARMLESS   ERROR.         63 

substantial  justice  is  done.^  Xor  the  absence  of  a  wit- 
ness, whose  testimony  wouhl  not  be  sufficient  to  change 
the  verdict.^ 

§  17.  So,  in  a  case  of  excessive  damages,  a  new  trial  was 
refused,  where,  though  the  damages  should  be  reduced, 
the  defendant  would  still  be  the  sufferer.^  So,  "  as  a 
general  rule,  a  new  trial  ought  not  to  be  granted  merely 
to  enable  a  party  to  recover  nominal  damages;"  more 
especially  where  by  statute,  in  such  case,  the  plaintiff  not 
only  loses  his  own  costs,  but  is  made  liable  to  pay  costs 
to  the  defendant.^  With  the  exception,  however,  of  cases, 
where  a  question  of  right  or  title  to  property  is  involved.^ 
The  same  rule  is  applied,  where  the  only  effect  of  a  new 
trial  would  relate  to  the  costs.  As  where,  upon  an  infor- 
mation in  the  nature  of  a  quo  loarranto,  a  verdict  being 
rendered  for  the  State,  the  defendant's  term  had  expired, 
and  a  new  election  taken  place. ^ 

§  18.  The  same  qualifications,  however,  are  sometimes 
adopted  with  reference  to  this  point,  of  substantial  Justice, 
which  have  already  been  stated  in  regard  to  the  analogous 
consideration,  that  a  party  has  suffered  no  injury  from  the 
verdict  complained  of.  Thus  it  is  held  that  a  new  trial 
will  not  be  granted,  unless  it  appears  that  injustice  either 
was  or  might  have  been  done,  on  the  former  trial.''  And 
more  especially  in  a  criminal  and  capital  case,  the  burden 
of  showing  actual  injustice  is  not  imposed  upon  the  party 
moving  for  a  new  trial.  Thus  A.,  the  sheriff  of  the  county, 
being  prosecutor,  B.  Avas  indicted  for  murder  and  con- 

1  Stiles  V.  McKibben,  2  Ohio  (N.  s  Allen  v.  Sawyer,  2  Peun.  325. 
S.)  588;  McClusky  v.  Gerhauser,  See  Bullock  v.  Beach,  3  Verm.  73  ; 
2  Nev.  47.  Smith   v.   Surber,  2   Marsh.    450 ; 

2  Robinson  v.  Martel,    11   Tex.  Hunter  v.  Dickerson,  ib.  546. 
149.  ^  Connecticut  v.  Tudor,  5  Day, 

3  Buddington    v.    Knowles,    30  329. 

Conn,  26.  "  Brown  v.  Keach,  24  Conn.  73. 

*  Per  Sanford,  J.,  Gold  v.  Ives, 
29  Conn.  123. 


G4  THE    LAW    OF    NEW    TRIALS.  [CIL  III. 

victed  of  inan>laug-liter.  13.  consenting  in  person,  A. 
summoned  the  jury,  l>y  direction  of  the  court;  and,  though 
the  jury  when  they  retired  were  put  under  the  charge  of 
a  constable,  yet  A.  spent  a  night  in  the  room  witli  them. 
A.  made  afHdavit  that  he  "made  use  of  no  means  of  any 
sort  to  influence  the  jury."  Held,  in  order  to  obtain  a 
new  trial,  B.  was  not  bound  to  show,  that  in  fact  his 
rights  were  thus  prejudiced.  It  was  sufficient  that  they 
might  have  been  prejudiced.^  So  a  new  trial  will  be 
granted,  where,  the  plaintiff  being  entitled  to  the  verdict, 
it  was  rendered  for  the  defendant,  and  the  court  allowed 
it  to  stand,  on  condition  that  he  paid  nominal  damages 
and  costs.-  So,  where  the  verdict  is  unreasonable  and  un- 
just, as  well  as  unlawful,  a  new  trial  will  be  ordered, 
although  the  verdict  may  appear  to  be  fair  and  equitable.^ 

'  McElrath  v.  State,  2  Swan,  378.         '  Iloustou  v.  Gilbert,  3  Brcv.  03. 
2  Jones  V.  Water,  &c.,  18  Geo. 
539. 


en.  IV.]  TERMS   OF   GRANTING   A   NEW   TRIAL.  65 


CHAPTER  TV. 

TERMS  OF  GRANTING  A  NEW  TRIAL. 

1.  Costs.  1      15.  Refusal  of  terms. 

8.  Other  terms  —  new  trial  in  j  IG.  Terms  imposed  upon  prevail - 
part — miscellaneous.  ;  ing  party. 

13.  Terms,  as  atfected  by  the  1  19.  Abandonment  of  exceptions. 
form  of  action.  I 

§  1.  "Where  a  judgment  is  reversed  and  the  cause  re- 
manded for  a  new  trial,  such  trial  must  be  allowed  uncon- 
ditionally, unless  the  mandate  is  otherwise;  and  any  judg- 
ment or  order  for  costs,  in  such  case,  by  the  court  below, 
is  erroneous.^  And  even  where  a  new  trial  was  granted, 
on  condition  of  the  payment  of  all  costs  on  or  before  the 
first  day  of  the  next  term ;  held,  the  order  being  condi- 
tional was  null  and  void,  and  the  first  judgment  remained 
in  full  force.^  But,  in  general,  it  is  within  the  discretion 
of  a  court  to  grant  a  new  trial  on  such  terms  as  it  may 
think  proper.^  And  the  court  above  will  not  interfere 
with  them.  Thus  the  question  of  costs  is  in  the  discre- 
tion of  the  court.* 

§  2.  It  is  stated  as  the  general  rule,  in  England,  that,  in 
case  of  a  new  trial  for  irregularity.,  no  costs  are  imposed. 
Otherwise  if  on  the  merits.\a) 

•  Ely  v.  Horine,  5  Dana,  398.  158  ;  Rice  v.  Gashirie,  13  Cal.  58  ; 

2  Secrest  v.  Best,  6  Tex.  199.   But  Edwards  v.  Lewis,  18  Ala.  494. 

see  15  111.  380  ;  5  Blackf.  409.  <  AY  right  v.  Antrim,    1  Morris, 

'  Lancey  v.  Bradford.  4  Rich.  1.  258. 

See  Keate  v.  Temple,  1  Bos.  &  P.  ^  13  Mod.  370. 

(a)  In  Indiana  in  an  action  to  quiet  title,  a  party  may  have  one  new  trial 
without  showing  cause,  upon  payment  of  all  costs  and  of  the  damages,  if 
the  court  so  direct ;  but  payment  of  costs  is  a  condition  precedent,  and 
5 


66  THE   LAAV    OF   NEW    TRIALS.  [CH.  IV. 

§  3.  In  England,  and  in  Xew  York,  a  venliet  will  not 
be  set  aside  as  against  evidence,  cxcc[)t  upon  iiayment  of 
costs.^  But  in  England,  where,  since  the  17  and  18  Vict, 
c.  125,  §  44,  a  new  trial  was  granted  on  the  ground  of  the 
verdict's  being  against  the  weight  of  evidence,  and  was 
also  moved  on  affidavits ;  the  court  directed  the  costs  to 
abide  the  event,  excepting  those  of  the  affidavits,  which 
the  party  who  succeeded  on  the  rule  ought  to  pay  in  any 
eveut.^ 

§  4.  In  England,  costs  are  imposed  where  a  party  relies 
on  a  ground  not  taken  at  the  trial ;  as  upon  a  clause  of  a 
statute  not  before  relied  upon.'  So  in  case  of  surprise.* 
liut  not  in  case  of  a  perverse  verdict.*  Or  misbehavior 
of  the  jury."     Or  misdirection  of  the  judge.^      So  costs 

1  Brown  «.  Braclshaw,  1   Ducr,     Fourdrinicr  v.  Bradbury,  3  B.  & 
l!t9-,  Ward  fl.  Woodlmrn,  27  Barb.     Aid.  :«8. 

34G ';  Scott  v.  AVatkinson,  4  Moo.  &  ^  Hodgson  v.  Barvis,  2  Chit.  R. 

P   237  ;  Bright  v.  Eyiion,  1  Burr.  268. 

300  ;  Marrow  v.  Hull,  1  Burr.  11  ;  «  Hall  v.  Cove,  1  Str.  642;  Shilli- 

Bur'ton  v.  Thoiu])bon,  2  Burr.  G64.  toe  v.  Claridge,  2  Clnt.  K.  425. 

2  Abbott  V.  Bult,  29  Eng.  L.  &  '  Williams  v.  Smith,  2  Caines, 
Eq   481  253;  Buscall  v.  Hogg,  3  Wils.  146; 

3'Sulton  T.  Milchcll,  1  T.  R.  18.      Vale  v.  Bayle,   1  Cowp.  297;  Po- 
«  Thurlcll  V.  Beaumont,  1  Bing.     chin  v.  Pawlcy,  1  W.  Bl.  670. 
339;  Shillito  v.  Theed,  6  Bing.  753; 


the  court  has  no  power  to  order  that  they  shall  abide  the  event  of  the  suit. 
Zimmerman  v.  Marchland,  23  Ind.  474.  On  the  other  hand,  under  §  601 
of  the  Code,  the  right  to  a  new  trial  in  ejectment  within  one  year  is  ab- 
solute, on  payment  of  costs,  and  is  unaffected  by  failure  to  comply  with 
an  unauthorized  condition ;  as  that  the  costs  shall  be  paid  within  a  cer- 
tain number  of  days.  Schrodt  v.  Bradley,  29  Ind.  352.  In  an  action 
based  upon  an  alleged  contract  to  procure  enlistments,  which  the  defend- 
ant admitted  that  he  had  not  fulfilled,  if  made,  the  phiintifT  was  allowed, 
after  the  charge,  to  file  a  count  to  recover  back  money  paid  without  con- 
sideration under  a  mistake  of  facts,  but  the  court  refused  the  plaintiff's 
request  to  give  additional  instructions,  although,  under  the  charge,  if  the 
jury  found  no  previous  contract,  their  verdict  must  be  for  the  defendant 
on  all  the  counts.  A  verdict  for  the  defendant  was  set  aside,  and  a  new 
trial  granted  upon  the  last  count  alone,  upon  condition  that  the  plaintiff 
pay  costs  to  the  time  of  filing  that  count,  and  recover  no  costs  previous 
to  that  time  in  any  event.    Johnson  v.  White,  98  Mass.  330. 


CH.  IV.]  TERMS   OF   GRANTING    A   NEW    TRIAL.  67 

were  not  imposed,  where  tlie  verdict  was  obtained  by  an 
unfair  and  unconscionable  advantage,  and  the  real  ques- 
tion not  tried.^  As  where  the  plaintiii'  had  concealed  iu 
his  house  a  material  witness  for  the  defendant.^ 

§  5.  In  an  old  case  in  New  York  the  court  remarked, 
that  "the  granting  new  trials  was  always  on  payment  of 
costs,  unless  otherwise  expressed,  or  when  for  the  mis- 
direction of  a  judge  ;  in  which  case  they  abide  the  event 
of  the  suit.  "2 

§  6.  It  is  held,  that,  if  payment  of  costs  be  made  a  con- 
dition precedent  to  a  new  trial,  and  the  defendant  neglect 
to  perform  the  condition  within  the  prescribed  time,  the 
judgment  remains  in  force,  and  may  be  inquired  into  by 
writ  of  error.^  Payment  or  tender  of  the  costs  is  a  con- 
dition precedent  to  the  notice  of  the  cause  for  trial.^  But 
on  the  other  hand  it  is  held,  that  an  order  for  a  new  trial, 
upon  payment  of  costs  within  a  specified  time,  is  an  abso- 
lute order,  not  depending  upon  such  payment  as  a  condi- 
tion precedent ;  that  the  opposite  party  has  his  legal 
remedy  to  recover  the  costs.^  Hence  it  is  error  for  the 
court,  at  the  next  term,  to  iion  jjros.  the  plaintiff  because 
the  costs  have  not  been  paid,  and  enter  judgment  for  the 
defendant  upon  the  verdict.^  So  an  order,  that  a  new  trial 
"  is  granted,  upon  payment  of  costs  within  ninety  days, 
for  which  let  execution  issue,"  is  absolute,  and  not  condi- 
tional upon  payment  of  costs. ^ 

§  7.  It  will  sometimes  be  ordered,  that  the  attorney  of 
the  prevailing  party  pay  the  costs.     Thus,  a  witness  for 


'  Anderson  v.   George,  1  Burr.         *  Somers  v:  Sloan,  3  Harr.  4G ; 

352.  Moberly  v.  Davar,  5  Blackf.  40». 

2  Bull.  N.  P.  328.  ^  Johnson  v.  Taylor,  3  Sm.  &  M. 

»  Williams   v.  Smith,  2  Caines,     92. 

253.  '  Gilliland  v.  Rappleyea,  3  Green, 

«  Adams  v.  Neeley,  15  111.  380.     139. 

But  see  6  Tex.  199.  *  Bearers,  34  Ala.  71. 


G8  THE    LAW    OF    NEW    TRIALS.  [CII.  IV. 

the  (k'lV'iidaiit  having  testified  that  lie  never  conversed 
with  tlie  attorney  for  the  plaintiff  as  to  the  matter  in 
question,  the  attorney  testified  to  the  contrary,  and  also 
stated  what  the  conversation  was.  The  former  witness 
was  then  committed  for  perjury,  hut  discharged  upon  the 
statement  of  the  attorney  that  it  might  have  been  the 
brother  of  the  witness,  who  resembled  him.  A  new  trial 
was  granted,  and  the  attorney  ordered  to  pay  the  costs  of 
the  former  trial. ^ 

§  8.  Other  terms  than  the  payment  of  costs  may  be  im- 
posed on  the  party  applying  for  a  new  trial.(rt)  Thus, 
where  the  jury  found  for  the  plaintifi:'  the  whole  value  of 
certain  slaves,  when  the  plaintiff's  interest,  it  was  alleged, 
was  only  for  life ;  a  new  trial  was  granted  to  the  defend- 
ant, on  condition  that  he  would  first  tender  the  slaves  to 
the  plaintiff,  and  give  him  the  election  to  accept  them, 
and  remit  the  verdict,  except  costs,  or  to  refuse  them  and 
have  the  trial  limited  to  a  single  point.^  So  a  new  trial 
was  granted,  the  former  verdict  standing  as  security  for 
the  damages  in  another  trial.^  So  the  practice  of  grant- 
ing a  new  trial  after  judgment,  as  to  part,  and  letting  the 
judgment  stand  as  to  the  residue  of  the  demand  sued  for, 
although  sometimes  questioned,  is  held  to  have  been  too 
long  sanctioned  to  be  now  disturbed.'' 

'  Trubody  v.  Brain,  9  Prico,  76.  '  Pleydell  r.  Dorcliestor,  7  T.  R. 

2  Laney  v.  Eradford,  4  Rich.  1.       525  ;  Sty.  406. 

^  Edwards  v.  Lewis,  18  Ala.  494. 


(a)  In  a  late  case  in  New  York  it  is  said  :  "  There  is  no  reason,  as  the 
merits  are  wholly  with  the  plaintiffs,  for  sending  the  case  back  for  a  new 
trial ;  but  the  judgment  should  be  niodiliod  and  made  to  conform  to  the 
provisions  of  the  code."  Per  Seldcn,  J.,  Fitzhugh  v.  Wiman,  5  Sold.  GGf). 
Where  a  new  trial  was  granted  on  motion  of  the  plaintiff,  on  conditions 
precedent,  and  he  failed  to  comply  with  the  conditions  for  eight  or  nine 
years;  held,  the  right  to  new  trial  was  lost.  Ward  v.  Patterson,  4G 
Pcuu.  372. 


CH.  IV.]  TERMS   OF   GR ANTING   A  NEW    TRIAL.  69 

§  9.  T\''hcrc  there  are  several  defendants  in  trespass,  and 
the  verdict  is  in  favor  of  some  and  against  the  others ; 
there  may  be  a  new  trial  for  a  part  only.^ 

§  10.  A  new  trial  may  be  ordered  upon  a  particular 
question,  without  reopening  the  whole  case.  Thus,  where 
in  an  action  of  assumpsit  the  defence  was,  that  the  plain- 
tiff had  taken  certain  bills  at  his  own  risk  in  payment  of 
the  demand  sued  on  ;  a  verdict  being  given  for  the  plaintiff, 
the  defendant  moved  for  a  new  trial,  which  was  ordered, 
but  upon  the  conditions  of  payment  of  costs,  bringing 
into  court  the  sum  claimed,  and  restricting  the  second 
trial  to  the  point  above  stated  alone,  in  the  same  way  as 
if  the  defence  had  been  specially  p]eaded.-(a) 

§  11.  If  a  new  trial  is  ordered  on  motion,  for  the  pur- 
pose of  trying  a  single  question,  and  the  prevailing  party 
reopens  the  whole  case ;  this  is  a  waiver  of  the  limitation, 
and  the  case  shall  be  retried,  generally.^ 

§  12.  Where  the  plaintiff  was  a  bankrupt,  and  his 
assignees  moved  to  set  aside  a  verdict  against  him ;  the 
motion  was  granted,  on  condition  of  their  agreeing  to  be 
bound  by  the  result,  and  becoming  responsible  for  the 
costs.^    So  on  granting  a  new  trial  it  was  ordered,  that 


'  Roberts  «.  Heffner,  19  Tex.  129.         ^  Seccomb  v.  Provincial,  &c.,  4 
2  Thwaites  v.  Sainsbury,  7  Bing.     Allen,  152. 
437.  *  Noble  v.  Adams,  7  Tann.  59. 

See  2  Chit.  272  ;  W.  Bl.  929. 


(a)  The  court,  under  (Iowa)  Rev.  U  3122-3,  3536,  on  finding  an  error 
only  in  an  allowance  of  the  defendant's  cross-action,  will  order  a  new  trial 
to  extend  thereto,  without  disturbing  the  judgment  for  the  plaintiff's 
claim.  McAfferty  v.  Hale,  24  Iowa,  355.  When  exceptions  are  sus- 
tained only  for  the  rejection  of  evidence  which  merely  affected  the 
damages,  a  new  trial  will  be  confined  to  the  assessment  of  damages. 
Kent  V.  Whitney,  9  Allen,  62. 


70  Tin:    LAW    OF    NEW    TRIALS.  [CII.  IV. 

the  jndiro's  note,  of  the  evidence  of  a  witness,  who  was 
very  old  and  sick,  should  ho  read  at  the  second  trial.' 

§  18.  A  new  trial  may  he  ordered  upon  the  merits,  with- 
out regard  to  the  form  of  action.-  But,  on  setting  aside 
an  inquest  taken  at  the  circuit,  the  Supreme  Court  of  ISTew 
York  will  not,  in  addition  to  the  usual  terms  of  relief, 
impose  the  condition,  that  the  defendants  shall  abandon 
the  defence  of  usurj-,  or  the  statute  of  limitations.^ 

§  14.  In  one  case  a  change  of  the  form  of  action  was 
allowed ;  though  admitted  to  go  beyond  any  precedent." 
But  if  a  new  trial  is  granted  to  the  plaintiff,  with  leave 
to  amend  his  declaration,  as  in  case  of  non-suit  for  vari- 
ance; the  defendant  will  also  be  allowed  to  plead  de  novo 
or  demur.^ 

§  15.  The  court  refused,  on  motion  for  a  new  trial  by  a 
defendant  eighty-seven  years  old,  to  impose,  as  a  condition, 
that  the  suit  should  not  abate  by  his  death. ^ 

§  16.  The  court  may  impose  terms  upon  the  prevailing 
party  as  the  condition  of  refusing  a  new  trial.'^(rt) 

'  Sliillitoo  V.  Claridgp,  Chit.  R.  ^  Lopoz  v.  De  Tastet,  8  Taun. 

42.').  712;  7  Moo.  129.     Sen  Plovdell  v. 

2  Welsh  v.  Dusar,  3  Einn.  32!).  Dorchester,  7  T.  R  r)25;  Palmer  u. 

3  Allen  V.  Mapes,  20  Wend.  0:53.  Colien,  2  B.  &  Ad.  900  ;  Griffith  v. 
*  Walker    v.   Long,  2   Browne,  Williams,  1  Cr.  &  Jer.  47. 

120.  '  Stephenson  v.  INIansonv,  4  Ala. 

6  Hoar  V.  Mill,  4  M.  &  S.  470  ;  317  ;  Walker  v.  Blassingame,  17 
Halhoad  v.  Abrahams,  3  Taun.  81.      Ala.  810. 

(a)  Where  in  an  action,  under  9  &  10  Vict.  c.  93,  for  the  loss  to  the 
•widow  and  eight  children  of  a  man,  killed  by  the  negligence  of  a  railway, 
who  was  tenant  for  life  of  an  estate  of  £4000  a  year,  and  to  whose  widow 
was  secured  a  jointure  of  £1000  a  year,  and  to  his  children  the  sum 
of  £20,000,  the  jury  gave  tlic  widow  £1000  damages  and  each  child 
£1.")00;  tlie  court  refused  a  new  trial,  only  on  condition  that  the  plaintiff 
would  assent  to  a  reduction  of  the  damages  to  £1000  for  each  child. 


CH.  IV.]  TERMS   OF   GRANTING   A   NEW   TRIAL.  71 

§  17.  Where,  on  motion  for  a  new  trial  by  the  defend- 
ant, the  plaintiff  was  ordered  to  remit  one  thousand  dol- 
lars damages  assessed  by  the  jury,  or  a  new  trial  would 
be  granted  on  payment  of  costs ;  and  the  defendant  paid 
the  costs  soon  after  the  court  adjourned ;  and,  the  second 
term  after,  the  plaintiff  moved  to  strike  the  case  from  the 
docket  on  his  releasing  damages:  held,  the  costs  were 
paid  in  due  time,  but  the  offer  to  remit  came  too  late,  and 
the  cause  could  not  be  dismissed.^ 

§  17a.  On  the  defendant's  motion  for  a  new  trial  after 
a  verdict  against  him  in  an  action  for  malicious  prosecu- 
tion ;   held  error  to   declare  that  the  motion  would  be 

'  Stephenson  -y.  Mansony,  4  Ala.  817. 

Pym  V.  Great,  2  B.  &  S.  759.  Where  a  verdict  was  rendered  upon  mate- 
rial, incompetent  evidence,  and  there  was  much  reason  to  suppose  injustice 
had  been  done ;  and  the  defendant,  though  personally  liable,  was  acting 
in  a  representative  capacity :  held,  although  there  was  no  sufficient  ex- 
ception to  the  incompetent  evidence,  a  new  trial  should  be  granted  on 
terms,  unless  the  plaintiff  would  stipulate  to  reduce  the  verdict.  Scott 
V.  Lilienthal,  9  Bosw.  224.  In  a  recent  case  in  Pennsylvania  (Boom  v. 
De  Bois,  Leg.  Intell.),  is  found  the  following  opinion:  "The  sixth 
assignment  of  error  is  to  the  entry  of  the  nolle  jyrosequi  as  to  John 
Conrad,  who  was  sued  as  a  partner  with  Ganger  &  Fisher.  At  com- 
mon law  a  joint  action  of  assumpsit  against  three  could  not  be  sup- 
ported by  evidence  that  the  contract  was  made  only  by  two.  The 
misjoinder  of  the  third  person,  who  was  no  party  to  the  contract,  could 
not  be  cured  by  a  nolle  prosequi.  But  the  acts  relative  to  amend- 
ments passed  the  16th  of  April,  1846,  §  2,  and  12th  April,  1858,  §  1, 
embrace  this  case.  There  being  no  sufficient  proof  on  the  trial  that  Con- 
rad was  a  partner,  this  fact  was  pressed  upon  a  motion  for  a  new  trial, 
and  the  judge  refused  the  motion  on  the  condition  of  the  plaintiff's  enter- 
ing a  nolle  prosequi  as  to  him.  This  was  merely  equivalent  to  an  amend- 
ment by  striking  out  Conrad's  name.  He  could  have  done  this  before 
verdict  and  we  see  no  reason  why  it  should  not  be  done  after  verdict. 
Under  the  act  of  1846,  amendments  can  be  made  in  '  any  stage  of  the 
proceedings.'  It  was  therefore  not  too  late  to  strike  out  the  name  of 
Conrad  before  judgment."  And  see  Rangular  v.  Hummel,  1  Wright,  132 ; 
Hite  V.  Kier,  2  ib.  72. 


72  THE    LAW    OF   NEW    TRIALS.  [CH.  IV. 

granted,  unless  the  jilaiiitill'  would  accept  a  judgment  for 
a  sum  much  smaller  than  the  verdict.' 

§  18.  It  is  also  held  that  a  new  trial  may  he  ordered, 
unless  the  party  recovering  a  verdict  enter  into  certain 
stipulations  relating  to  the  subject  matter  of  the  cause ; 
and  such  stipulations  may  he  relied  upon  in  a  subsequent 
suit  between  the  parties.    Thus,  in  assumpsit,  some  of  the 
plaintiff's  claims  having  been  excluded  from  the  jury, 
under  the  charge  of  the  court,  he  moved  for  a  new  trial; 
whereupon  it  was  ordered  "  that  a  new  trial  be  granted, 
unless  the  defendants  enter  into  an  agreement  of  record, 
that,  upon  any  future  settlement  in  chancery,  or  bill  tiled 
for  an  account  between  said  parties,  or  any  transactions 
between  said  defendants  and  A.  and  B.,  the  said  defend- 
ants will    not  plead  the  verdict  and  judgment  in  said 
cause;  or  use  the  same  in  any  manner  to  bar  tlie  claim  of 
said  plaintifls  or  said  A.  and  B.,  for  an  amount  and  set- 
tlement in  relation  to  said  excluded  claims,  all  which 
were  included  in  the  account  read  and  produced  to  the 
jury  by  the  plaintiffs  on  the  trial.     And  thereupon  came 
said  defendants  by  attorney,  and  covenanted  and  agreed 
to  the  above  terms  imposed  by  the  court,  and  it  was  there- 
upon considered  by  the  court  that  the  said  motion  for  a 
new  trial   be  overruled."     Held,  the  effect  of  this  order 
or  agreement  was  to  exempt  the  excluded  claims  from  the 
effect  of  the  payment,  and  the  plaintiffs  might  use  them 
as   a  set-off  in  an  action  at  law  subsequently  brought 
against  them  by  the  defendants.-(a) 

'  Brown  v.  Morris,  3  Bash,  81.  2  Iloyt  v.  Murphy,  23  Ala.  456. 

(a)  An  entry  on  the  clerk's  journal,  that  two  hundred  dollars  had  been 
deposited,  "  to  be  held  for  the  benefit  of  the  defendant  in  this  case  in  lieu 
of  an  undertaking  for  a  second  trial  in  said  case,  to  be  paid  back  to  said 
plaintiff  upon  the  condition  that  said  plaintiff  shall  abide  and  perform 
the  order  and  judgment  of  said  court,  and  pay  all  moneys,  costs,  and 
damages  which  may  be  required  or  awarded  against  said  plaintiff,  conse- 


en.  IV.]  TERMS    OP   GRANTINa    A   NEW    TRIAL.  73 

§  19.  In  England,  it  is  held  that,  when  a  bill  of  excep- 
tions has  been  tendered,  a  motion  for  a  new  trial  will  be 
refused,  unless  such  bill  be  abandoned;  and,  in  general,  a 
party  will  be  required  to  elect  between  a  motion  for  a  new 
trial  and  a  bill  of  exceptions.^ 

'  Doe  V.  Roberts,  3  Chit.  R.  273.      (But   see  1  Eng.  L.   &  Eq.  305.) 

Corlics  V.  Cummings,  5  Cow.  415. 

quent  upon  such  second  trial,  otherwise  the  said  money  is  to  be  apj^lied 
by  me  to  the  payment  thereof,"  and  signed  by  the  clerk,  is  not  an  under- 
taking for  a  second  trial  sufficient  to  give  jurisdiction  to  the  court ;  nor 
is  it  susceptible  of  amendment.     Shamokin  v.  Street,  16  Ohio  St.  2. 


THE   LAW    OF   NEW    TRIALS.  [CH.  V. 


CHAPTER  V. 

NATURE  AND  EFFECT  OF  THE  MOTION  FOR,  AND  THE 
GRANTING  OF,  A  NEW  TRIAL ;  POINTS  OF  PRACTICE  ; 
SUCCESSIVE  NEW  TRIALS. 

§  1.  IV^iTii  regard  to  tlie  cffcH  of  a  motion  for  a  new 
trial ;  independently  of  express  statntory  provision,  judg- 
ment is  thereby  suspended.  If  a  remittitur  l)e  entered  by 
a  plaintiff  in  favor  of  one  of  two  defendants,  against 
whom  a  verdict  in  an  action  of  debt  has  been  returned : 
until  the  suit  has  been  disposed  of  as  to  him,  no  judg- 
ment can  be  entered  against  the  other ;  and,  in  such  a 
case,  a  new  trial  should  be  granted.^  A  motion  for  a  new 
trial  precludes,  while  it  is  pending,  all  motions  for  further 
proceedings  in  the  case.^ 

§  2.  The  actual  granting  of  a  new  trial  supersedes  the 
effect  of  the  former  trial;  or  lui-pes  out  the  verdict:  no 
judgment  can  be  rendered  upon  it,  nor  is  it  a  bar  to  any 
proceed ing.3  The  case  goes  back  upon  all  the  issues  of 
fact.''  Hence,  where,  upon  an  indictment  containing  two 
counts,  the  jury  found  the  defendants  guilty  on  the  second 
count,  and  a  new  trial  was  granted ;  held,  the  effect  was, 
to  set  aside  all  the  proceedings  since  the  filing  of  tlie  bill, 
and  the  whole  case  stood  as  though  it  had  never  been 
tried.' 

§  3.  When  a  jury  cannot  agree,  or  when  their  verdict 
is  set  aside,  and  a  new  trial  awarded;  upon  the  new  trial, 

'  Reynolds  v.  Ilorine,  19  B.  Mon.  »  Edwards  v.  Edwnrds,  23  111. 
234.  121. 

2  Wright  V.  Haddock,  7  Dana,  '  Hidden  «.  Jordan,  28  Cal.  301. 
253  '^  The  8late  v.  The  Commission- 

ers, Riley,  273. 


en.  v.]      NATURE    AND    EFFECT    OF    THE   MOTION,   ETC.  75 

any  opinion  expressed  by  the  former  jury,  or  by  tbe  court 
upon  the  former  trial,  is  improper  for  the  consideration 
of  the  jury.^ 

§  4.  It  is  held  that  a  new  trial  cannot  be  granted  at  a 
term  subsequent  to  the  judgment,  unless  the  court  has 
done  some  act  to  suspend  the  judgment,  and  continue  the 

cause.^(a) 

§  5.  The  consent  of  parties,  however,  will  dispense  with 
the  application  of  this  general  rule,  even  though  they  act 
only  by  their  attorneys,  whose  authority  is  denied.  Thus, 
m  ^  scire  facias  to  revive  a  judgment,  the  administrators 
pleaded  an  order  of  court,  made  at  a  term  subsequent  to 
that  at  which  the  judgment  was  rendered,  granting  a  new 
trial  "by  consent  of  parties,  as  per  agreement  of  parties, 
by  their  attorneys  filed."    Replication,  that  the  agreement 

'  Crawford  v.  Morris,  5  Gratt.  90.         2  1  Monr.  3  ;  The  People  v.  Pear- 
son, 3  Scam.  406. 

(o)  In  Kentucky,  it  is  not  sufficient  that  the  counsel  files  grounds  for 
a  new  trial,  which  were  indorsed  by  the  clerk  "  filed,"  &c.,  without  an 
entry  on  the  record.  Buckner  v.  Cowley,  1  Monr.  3.  Where  an  action 
has  been  tried  by  a  county  court  judge  under  19  &  20  Vict.  c.  108,  §  26, 
the  time  within  which  a  motion  for  a  new  trial  must  be  made  runs  from 
the  day  of  the  hearing,  and  not  from  the  filing  in  the  master's  office  of 
the  registrar's  certificate  of  the  result.  Copcutt  v.  Great,  Law  Rep.  2  C. 
P.  465.  In  California,  upon  a  trial  by  the  court,  a  judgment  for  the  plain- 
tiff was  announced,  February  24,  and  entry  was  made  on  the  minutes  of 
the  court.  On  the  11th  of  March,  the  judge  signed  and  delivered  to  the 
plaintiff  the  written  findings  and  a  draft  of  the  judgment,  to  be  filed,  and 
such  filing  was  made  by  the  clerk,  March  13.  On  the  same  day  the 
plaintiff  served  a  written  notice  on  the  defendant,  "that  the  findings  in 
the  above  entitled  cause  have  this  day  been  signed  by  the  judge,  and  his 
decision  herein  rendered  in  favor  of  the  plaintiff,  March  11, 1865."  Held, 
this  notice  referred  to  the  decision  of  the  11th  of  March,  and  the  defend- 
ant had  ten  days  from  March  13  to  file  his  intention  to  move  for  a  new 
trial,  the  day  of  filing  by  the  clerk  being  the  day  upon  which  the  judg 
ment  should  be  considered  to  have  been  rendered.  Carpentier  v.  Thurs- 
ton, 30  Cal.  123. 


7G  THE    LAW    OF   NEW    TRIALS.  [CU.  V. 

was  made  witliout  the  autliority  or  sanction  of  tlie  }»lain- 
titi^",  and  tl:at  the  order  for  the  ne\v  trial  was  made  in  his 
absence,  without  any  ap[)earance  by  him,  or  his  authority, 
and  without  any  notice  to  liim.  Held,  the  order  was  con- 
clusive evidence  that  the  parties  appeared  and  consented, 
as  stated,  and  that  the  suit  could  not  be  maintained;  also, 
that  the  effect  would  be  the  same,  if  the  order  should  be 
understood  as  stating  that  they  appeared  by  their  at- 
torneys.^ 

§  6.  In  Xew  York,  a  new  trial  may  be  granted,  even 
after  judgment  and  appeal;^  but  will  not  be,  where  the 
matter  is  still  before  the  court,  undecided.  As  where  a 
case  was  under  advisement  before  a  county  judge,  when 
his  term  of  office  expired.^ 

§  7.  Where  a  statute  required,  that  exceptions  should 
be  allowed  within  fifteen  days  after  being  presented ;  held, 
the  Supreme  Court  could  not  take  cognizance  of  excep- 
tions not  conformable  to  this  act.  Held,  further,  under  a 
rule  of  court,  requiring  that  a  petition  for  the  allowance 
of  exceptions,  not  seasonably  allowed,  should  be  entered 
at  the  regular  term  for  entering  the  exce[)tions  ;  such  peti- 
tion could  not  be  entered  afterwards,  although  the  excep- 
tions were  allowed  after  the  time  prescribed  by  law.*(a) 

•  IIolbcrt».Montgomery,5Dana,  ^  Putnam  v.  Crombio,  o4  Barb. 

11.  233. 

2  Nash  «.  Wetmore,  33  Barb.  155.  *  Ehvell  v.  Dizer,  1  Allen,  484. 
See  Jackson  v.Fassitt,  83  Barb.  644. 

(a)  In  case  of  a  verdict  against  the  plaintiff,  who  afterwards  dies ;  it 
seems  no  motion  lies  for  a  new  trial  till  administration  is  taken.  Lloyd 
V.  Ogelby,  5  Com.  B.  N.  S.  667. 

Questions  sometimes  arise,  in  reference  to  the  respective  bearing  upon 
the  riglit  to  a  new  trial,  of  a  bill  of  exceptions,  and  a  mere  motion.  They 
usually  turn,  however,  upon  express  statute  or  local  usage.  Thus  it  is 
held  iu  New  York,  that  bills  of  exceptions,  being  created  by  statute, 
are  limited  to  exceptions  taken  on  the  trial  of  the  main  issue — including 


CH.  v.]      NATURE    AND    EFFECT    OF   THE   MOTION,    ETC.  77 

decisions  on  preliminary  questions,  such  as  motions  to  quash  the  indict- 
ment, for  irregularity  in  organizing   the  grand  jury,  challenge  to  the 
array,  &c.    Wynehamer  v.  People,  2  Parker,  377.     In  Arkansas,  a  party 
moving  for  a  new  trial  waives  previous  exceptions,  unless  made  grounds 
of  the  motion,  and  preserved  by  bill  of  exceptions  to  the  opinion  of  the 
court  overruling  the  motion.     Ford  v.  Clark,  7  Eng.  99;  ace.  Parley  v. 
Bobbins,  3  Pike,  144.     The  party  moving  for  a  new  trial  may  set  forth 
the  points  on  which  he  relies,  and  incorporate  the  evidence  adduced 
at  the  trial.     He  stands  then  in  the  same  position  as  if  he  had  taken  no 
exceptions.     But  if  he  fails  to  set  out  the  evidence,  he  abandons  the 
bill  of  exceptions  incorporating  the  evidence,  and  the  evidence  no  longer 
appears  of  record.     Parley  v.  Robbins,  3  Pike,  144.     He  may  reserve 
the  exceptions  for  revision,  in  case  the  motion  for  a  new  trial  is  over- 
ruled, by  making  them  ground  for  the  motion,  and  incorporating  them 
in  the  bill  of  exceptions  to  the  refusal  to  grant  a  new  trial.     Berry  v. 
Singer,  5  Eng.  483.     But  a  party  cannot  put  evidence  upon  the  record 
by  incorporating  it  in  his  motion  for  a  new  trial,  and  referring  to  it  as 
incorporated  in  his  bill  of   exceptions  to  the   decision  refusing  a  new 
trial.     lb.     In  Alabama,  the  court  trying  a  cause  ought  not  to  grant  a 
new  trial  for  the  causes  embraced  by  a  bill  of  exceptions,  unless  the  party 
distinctly  waives  the  exception.     But  if  the  court  make  no  such  requi- 
sition, but  allow  the  exception,  and  consider  and  overrule  the  motion  for 
a  new  trial,  the  appellate  court  cannot  refuse  to  consider  the  exceptions. 
And  where  the  motion  is  rested  upon  grounds  not  embraced  by  the  bill 
of  exceptions,  the  primary  court  cannot  put  the  party  excepting  to  an 
election.  Sorrelle  v.  Craig,  9  Ala.  535 ;  West  v.  Cunningham,  9  Port.  104. 
In  Maine,  where,  in  the  Court  of  Common  Pleas,  exceptions  are  taken  to 
the  opinion  of  the  judge,  and  a  motion  at  the  same  time  made  for  a  new 
trial,  the  judge  may  require  the  party  to  elect  whether  to  proceed  on 
the  exception  or  rely  on  his  motion ;  and  an  election  to  proceed  on  the 
motion  for  a  new  trial  is  a  waiver  of  the  right  to  proceed  on  the  excep- 
tion.    State  of  Maine  v.  Call,  2  Shep.  421.    In  Mississippi,  where  a  bill 
of  exceptions  showed  that  it  was  taken,  after  the  adjournment  of  the 
court,  to  a  judgment  overruling  a  motion  for  a  new  trial,  without  its  ap- 
pearing that  the  motion  was  taken  under  advisement,  it  was  held  in- 
Bufiicient.     Tucker  v.  Gordon,  7  How.  306.     In  Massachusetts,  a  motion 
for  a  new  trial  may  be  made  in  the  Supreme  Judicial  Court,  in  a  criminal 
case  brought  from  a  lower  court  on  exceptions,  simultaneously  with  the 
argument  of  the  exceptions.     Cora.  v.  Peck,  1  Met.  428.     The  words, 
"  motion  for  a  new  trial,"  in  the  Massachusetts  Act  of  1842,  c.  89,  |  2, 
authorizing  the  entry  of  judgment  as  of  the  term  when  the  verdict  was 
rendered,  if  necessary  to  efifect  justice,  are  not  there  used  in  a  strict  tech- 
nical sense,  but  are  intended  to  include  all  cases,  which  are  continued, 
on  the  motion  of  a  dissatisfied  party,  with  a  view  to  obtain  some  new 


78  THE    LAW    OF    NEW    TRIALS.  [CII.  V. 

disposition  thereof,  in  order  to  relieve  himself  from  a  verdict.  Judge 
Metcalf  remarks,  that  a  different  "  construction  would  defeat  the  inten- 
tion of  the  legislature  in  half  the  cases  for  which  they  evidently  meant 
to  provide."  Springfield  v.  "Worcester,  2  Cush.  .52,  Gl.  In  Pennsylvania, 
a  party  who  takes  a  bill  of  exceptions  to  the  rulings  at  nisi  prius  can- 
not assign  for  error  the  refusal  of  the  judge  to  grant  a  motion  for  a  new 
trial.  Klein  v.  Franklin,  &c.,  13  Penn.  247.  In  Vermont,  a  motion  for 
a  ni;\v  trial  cannot  be  entertained  in  the  Supreme  Court,  in  a  case  which 
came  there  on  exceptions  to  the  decision  in  the  county  court.  Blodgett 
V.  lloyalton,  10  Verm.  497.  In  Engkuul,  after  bill  of  exceptions  tendered, 
the  party  cannot  move  for  a  new  trial  upon  a  point  which  miglit  have 
been  (but  was  not)  included  therein,  without  abandoning  the  bill  of  ex- 
ceptions. But,  it  seems,  if  the  point  could  not  have  been  made  in  a  bill 
of  exceptions,  the  motion  might  have  been  made  concurrently.  Adams 
V.  Andrews,  1  Eng.  Law  k  Eq.  305.     See  ch.  4,  s.  19. 

Questions  often  arise  in  reference  to  the  right  of  claiming  successive 
new  trials.  Where,  in  an  action  upon  a  policy  of  insurance,  three  ver- 
dicts were  returned  for  a  total  loss,  although  the  loss  was  manifestly  less 
than  fifty  per  cent,  of  the  value;  the  third  verdict  was  set  aside.  Bryant 
V.  Com.,  13  Pick.  543.  This  also  frequently  depends  upon  express 
statute.  (See  Ewing  v.  Gray,  12  Ind.  64.)  In  Indiana,  in  civil  causes, 
only  two  new  trials  can  be  granted.  Koberts  v.  Robeson,  22  Ind.  456. 
This  provision  of  the  Code  means,  that,  when  three  juries  have  concurred 
in  finding  the  matters  actually  in  litigation  against  a  party,  the  courts 
shall  not  disturb  the  verdict  on  his  application.  Judah  v.  Viucennes,  23 
Ind.  273.  Action  for  the  unlawful  detention  of  real  estate,  trial  by  jury, 
and  verdict  for  the  plaintiff  for  $51  damages.  The  cause  was  tried  a 
second  time  by  the  court,  and  the  defendants  had  judgment.  In  the 
mean  time  the  defendants  surrendered  possession.  A  third  trial  was  after- 
wards had  in  the  absence  of  the  defendants  and  their  counsel,  who  had 
gone  to  the  war ;  and  $500  were  recovered  against  them.  After  the  close 
of  the  term,  the  defendants  filed  a  complaint  for  a  new  trial,  sworn  to,  in 
which  the.se  facts  ajjpeared ;  also  that  they  did  not  discover,  until  after 
the  close  of  the  term,  that  the  cause  had  been  tried  in  the  absence  of  their 
attorney  ;  that  they  had  a  meritorious  defence  ;  that  reasonable  ground 
existed  for  belief  on  their  part,  that  their  cause  would  be  well  attended 
to  without  their  personal  presence,  and  that  they  were  excusable  in  being 
absent.  Held,  the  new  trial  should  have  been  granted.  Sturgeon  v. 
llitchens,  22  Ind.  107.  Where  A.  made  a  mortgage  to  secure  a  loan 
from  the  trust  funds,  and,  after  several  transfers  of  the  property,  the 
auditor,  to  collect  the  debt,  advertised  and  sold  the  property  in  the 
name  of  the  mortgagor,  and  B.  became  the  purchaser  on  a  credit  of  a  few- 
days,  and,  before  the  purchase-money  was  paid,  the  owner  of  the  fee  at 


CH.  v.]      NATURE    AND    EFFECT    OF   THE   MOTION,    ETC. 


79 


the  time  of  the  sale  offered  to  pay  the  debt  and  interest,  which  was 
refused  by  the  auditor,  and  the  owner  then  sued  to  enjoin  the  execution 
of  a  deed  to  B.,  and  to  set  aside  the  sale,  and  had  judgment  upon  the 
trial,  and  B.  then  demanded  a  new  trial  as  of  right,  under  art.  29  of  the 
Code  (2  G.  &  II.  281),  which  was  refused  by  the  court;  held,  the  new 
trial  should  have  been  granted.  Bender  v.  Sherwood,  21  Ind.  167. 
In  Illinois,  the  unsuccessful  party  in  ejectment,  as  in  other  civil  cases,  is 
entitled  to  new  trial  for  sufficient  legal  cause,  such  as  an  erroneous  ruling 
of  the  court  in  the  admission  or  exclusion  of  evidence,  &c. ;  and,  in  addition 
to  this  common  law  right,  he  may  have  a  new  trial  under  the  statute, 
without  showing  any  cause  therefor;  and  after  he  has  had  one  or  more 
new  trials  for  cause  shown.  Emmons  v.  Bishop,  14  111.  152.  The  vacating 
of  a  judgment,  and  granting  a  new  (rial,  under  the  30th  section  of  the 
Illinois  Act  of  1838-9,  is  a  matter  of  right,  under  the  first  motion 
made  for  that  purpose ;  but,  whether  a  second  motion  shall  be  sustained, 
is  a  matter  which  rests  in  the  sound  discretion  of  the  court.  Yance  v. 
Schuyler,  1  Gilm.  160.  In  Missouri,  the  following  points  have  been  succes- 
sively decided.  For  the  errors  of  the  jury  in  matters  of  law,  but  not  for 
the  errors  of  the  court,  a  second  new  trial  may  be  granted.  Hill  v.  Wil- 
kins,  4  Mis.  86.  Under  the  Missouri  statute  (Rev.  Code,  1835,  470),  a 
second  new  trial  can  be  granted  only  for  a  misconception  of  the  instruc- 
tions of  the  court,  or  of  the  general  law  governing  the  case,  if  no  in- 
structions are  given,  or  if  there  is  an  entire  disregard  of  such  instructions, 
which  must  be  inferred  from  a  comparison  of  the  verdict  with  the  facts 
in  evidence.  Hill  v.  Deaver,  7  Mis.  57.  And  a  second  new  trial  cannot 
be  granted,  except  for  the  causes  stated  in  such  statute.  Humbert  v. 
Eckert,  7  Mis.  259.  Unless  the  jury  have  erred  in  matter  of  law  or  mis- 
behaved, a  second  new  trial  will  not  be  granted.  Ramsey  v.  Hamilton, 
14  Mis.  358.  The  statute,  specifying  the  only  causes  for  which  a  second 
new  trial  may  be  granted,  is  only  applicable  to  cases  in  which  the  law 
has  been  correctly  expounded  to  the  jury.  Boyce  v.  Smith,  16  Mis.  317. 
If  a  second  new  trial  has  been  improperly  granted,  the  matter  can  only 
be  corrected  by  a  mandamus  from  the  Supreme  Court.  lb.  If  a  new 
trial  has  been  asked  for  and  refused,  the  Supreme  Court  will,  on  appeal 
or  writ  of  error,  look  into  the  record,  and  see  if  the  verdict  may  have 
been  caused  by  the  misdirection  of  the  court  below;  and,  if  so,  will  re- 
verse the  judgment  and  award  a  new  trial,  without  regard  to  the  number 
of  new  trials  previously  awarded  to  the  party.  lb.  A  court  above  will 
grant  any  number  of  new  trials  for  error  in  the  instructions  to  the  jury. 
Harrison  v.  Cachelin,  23  Mis.  117.  In  Virginia,  where  a  prisoner  was 
convicted  on  two  trials,  at  both  of  which  his  motion  to  set  aside  the 
verdict  was  overruled  by  the  presiding  judge,  a  new  trial  was  granted  by 
the  court  above,  the  evidence  not  being  sufficient  to  sustain  the  verdict, 
(irayson  v.  The  Commonwealth,.  7  Gratt.  613.     (The  prisoner,  in  this 


80  THE    LAW    OF    NEAV    TRIALS.  [CII.  V. 

case,  was  tortured  at  tlio  primary  oxamination  to  compel  him  to  confess, 
and  was  hung  by  a  mob  before  his  third  trial.)  The  Tennessee  Act  of 
1801,  c.  6.  ?  59,  which  provides  that  not  more  than  two  new  trials  shall 
be  granted  to  the  same  party,  does  not  apply  to  cases  where  the  record 
shows  upon  its  face  error  in  the  verdict  of  the  jury,  or  irregularity 
amounting  to  error  in  the  proceedings.  Wilson  v.  Greer,  7  Humph.  513. 
If  a  party  seek  to  set  aside  the  third  verdict,  the  record  must  show  that 
one  or  both  of  the  previous  verdicts  have  been  set  aside  from  error  in  the 
charge  of  the  court,  or  in  the  admission  or  rejection  of  testimony,  or  for 
the  misconduct  of  the  jury,  and  the  like.  Turner  v.  Eoss,  1  Humph.  16; 
Trott  V.  West,  1  Meigs,  163 ;  10  Yerg.  499.  When  three  new  trials 
were  granted  to  the  defendant,  but,  in  each  trial,  the  verdict  was  for 
more  than  the  plaintiff  could  claim  in  any  court,  and  on  the  third  trial 
there  were  but  eleven  jurors,  all  of  which  appeared  on  the  record;  it  was 
held  that  the  act  did  not  apply.  lb.  In  a  very  recent  case  it  is  held, 
that  the  statute  forbidding  more  than  two  new  trials  applies  to  a  case 
where  new  counts  are  added  after  such  trials,  especially  if  for  the  same 
cause  of  action;  but  not  where  the  new  trials  are  granted  for  misdirec- 
tion, wrong  admission  or  rejection  of  evidence,  or  misconduct  of  the  jury, 
if  so  stated  in  the  record  at  the  time.  East,  &c.  v.  Hackney,  1  Head, 
169.  Where  the  record  is  silent  as  to  the  reason  for  granting  a  new  trial, 
the  court  will  presume  it  was  granted  on  the  merits,  and  not  from  any 
special  cause,  excepted  by  judicial  construction  from  the  inhibition  of 
the  Act  of  1801,  c.  6,  §  59,  Ferrell  v.  Alder,  2  Swan,  77.  In  Mississippi, 
the  statutory  prohibition  of  over  two  new  trials  does  not  apply  to  erro- 
neous rulings.  Garnett  v.  Kirkham,  33  Miss.  389;  Wildy  v.  Bonney,  35 
Miss.  77.  In  Mississippi,  where  there  have  been  two  trials  with  a  like 
result,  a  new  trial  will  not  be  granted  because  the  verdict  appears  to  be 
against  the  weight  of  evidence.  Philbrick  v.  Holloway,  6  How.  91.  And 
where  two  new  trials  have  been  granted  to  the  same  party,  the  court  has 
no  authority  to  entertain  a  motion  for  a  third.  Ray  v.  McCary,  26  Miss. 
404.  In  Georgia,  in  cases  of  doubt,  the  court  will  not  interfere,  espc- 
cially  after  (wo  concurrent  verdicts.  Mayer  v.  Wiltberger,  Geo.  Dccis. 
Part  II.  20.  (In  Georgia,  Mississippi,  and  Kentucky,  a  new  trial  will 
not  be  granted  where  there  have  been  two  concurrent  verdicts,  and  no  rule 
of  law  has  been  violated.  Davis  v.  Hale,  Geo.  Decis.  Part  II.  82 ;  Ross 
V.  Ross,  5  B.  Mon.  20;  Cuming  v.  Frier,  Dudley,  Geo.  182;  Mum  v.  Per- 
kins, 1  Sm.  &  M.  412.)  In  South  (^irolina,  in  trespass  for  killing  a  slave, 
the  plea  was  not  guilty;  and  the  defence,  that  the  defendant  killed  the 
slave  in  self-defence.  After  a  second  verdict  for  the  defendant,  the  court 
refused  the  plaintiff's  motion  for  a  third  trial.  AVatson  v.  Hamilton,  6 
Rich.  75.  In  Kentucky,  a  verdict  was  given  for  a  plaintiff  upon  slight 
evidence,  and  a  new  trial  granted.  Upon  the  second  trial,  a  verdict  was 
given  for  the  defendant,  to  which  the  plaintiff  took  no  exception.     Held 


CH.  v.]      NATURE    AND    EFFECT    OF    THE    MOTION,    ETC.  81 

the  latter  verdict  must  be  presumed  to  lie  according'  to  the  rif,^ht  of  the 
case,  and  there  should  be  no  reversal  for  error  in  g-ranting  the  new  trial. 
Bank  of  Commonwealth  v.  lilies,  4  Dana,  598.  AVherc  there  were  two 
verdicts  for  the  same  party,  and  the  last  was  sustained  by  the  court 
below,  it  was  held  that  the  court  above  would  not  disturb  it,  "  though 
there  seemed  to  be  clear  preponderance  of  evidence  against  it."  Bennett 
V.  Runyon,  4  Dana,  422.  In  Texas,  where  there  have  been  two  trials 
and  two  verdicts,  the  court  will  not  set  aside  the  second  verdict,  though 
the  verdict  is  not  satisfactory,  and  the  evidence  does  not  appear  on  which 
it  was  found.  Duggan  v.  Cole,  2  Tex.  381;  Perry  v.  Robinson,  ib. 
490.  A  case  which  has  already  been  before  the  court  once  on  an  appeal, 
and  in  which  there  have  since  been  two  concurring  verdicts,  and  the 
evidence  of  which  leads  to  no  certain  conclusion,  is  a  proper  case  for  the 
application  of  the  statute,  prohibiting  the  granting  of  "  more  than  two 
new  trials  to  either  party  in  the  same  cause,  except  the  jury  have  been 
guilty  of  some  miscondnct,  or  erred  in  matter  of  law."  Rains  v.  Hood, 
23  Tex.  525.  In  New  York,  a  defendant  in  ejectment  cannot  have  a 
third  new  trial  under  the  statute  (2  Rev.  Sts.  309,  ?  37),  though  the  first 
two  were  granted  by  the  Court  of  Common  Pleas,  whence  the  cause  was 
removed  to  the  Supreme  Court.  Brown  v.  Crim,  1  Denio,  G65.  The 
court  will  not,  in  the  exercise  of  its  discretion,  grant  a  third  trial  of  an 
action  to  recover  possession  of  lands  to  a  party,  who  upon  the  two  pre- 
vious trials  has  lost  his  ease  by  overlooking  a  point  of  law,  or  conceding 
a  fact,  or  by  omitting  to  seek  a  remedy  by  an  appeal  from  an  erroneous 
ruling  on  an  important  question  of  evidence,  unless  he  is  shown  to  have 
been  thrown  off  his  guard.  The  fact  that  the  defendant,  in  another 
cause,  tried  subsequently,  succeeded  by  raising  the  objections  which  were 
not  raised  in  the  present  case,  is  not,  necessarily,  ground  for  granting  the 
application.  Wright  v.  Milbank,  9  Bosw.  672.  In  Rhode  Island,  the 
court  will  not  entertain  a  second  application  for  a  new  trial  by  the  same 
party  in  the  same  suit,  unless  it  appears  that  he  did  not  know,  and  could 
not  have  known,  the  grounds  upon  which  the  second  application  rests,  at 
the  time  the  former  application  was  submitted,  Hayes  v.  Kenyon,  7 
R.  I.  531. 


82 


THE    LAW    OF    NEW    TRIALS. 


[CH.  VI. 


CHAPTER  VI. 


WAIVER. 


1.  General  rule. 

2.  Incomi)etcncy,&c.,  of  jurors. 
7.  Evidence. 

13.  Written  evidence. 
15.  Miscellaneous  points  of  evi- 
dence. 
20.  Erroneous  rulings. 


24.  Surprise. 

29.  New  evidence. 

30.  Excessive  damages. 

31.  Miscellaneous  cases. 
33.  Negligence  of  counsel. 
d'Sn.  Waiver  in  respect  to  time. 


§  1.  A  PARTY  cannot  move  for  a  new  trial,  on  ground 
not  distinctly  made  at  the  trial,  more  especially  where  it  is 
such  as,  if  then  offered,  might  have  been  distinctly  ob- 
viated by  proof.'(a)  In  such  case  exceptions  are  con- 
sidered as  waived?  And  the  waiver  precludes  objections 
in  the  court  above.^  So  a  new  trial  will  sometimes  be 
refused,  because  the  party  neglected  to  apply  for  it  in  the 
court  trying  the  cause."  It  is  said,  in  an  old  case,  "You 
should  have  insisted  on  your  exception  at  the  trial ;  you 
waive  it  if  you  acquiesce,  and  shall  not  resort  back  to 
your  exception  after  a  verdict  against  you,  when,  perhaps, 


'  Darrancc  v.  Preston,  18  Iowa, 
300  ;  New  York,  &c.  v.  Cook,  2 
Sandf.  732.  (But  see  Farr  v.  Fuller, 
8  Clarke,  347  ;  Yeitbs  v.  Hagge,  8 
ih.  103.)  Cobb  v.  Norwood,  11 
Tex.  050  ;  State  v.  Norwood,  13 
Md.  177;  Hughes  v.  Jackson,  ib. 
450 ;  Trustees,  &c.  v.  Cronin,  4 
Allen,  141;  Fisk  v.  Miller,  20  Tex. 
572  ;  Peebles  v.  Hand,  43  N.  II. 
337  ;  Goss  v.  McClaren,  17  Tex. 
107  ;  Dodson  v.  Counally,  Geo. 
Decis.  Part  I.  132  ;   Chambers  v. 


Dickson,  Geo.  Decis.  Part  I.  104  ; 
Commercial.  &c.  v.  Lum,  7  How. 
Miss.  414 ;  Bowen  v.  Argall,  24 
Wend.  490  ;  Lewis  v.  Bank,  etc., 
12  Ohio,  132  ;  Richards  v.  Griflin, 
5  Ala.  195;  Porter  v.  Sherl)urn,  8 
Shep.  258  ;  Willard  v.  Warren,  17 
Wend.  257. 

2  Kimball  v.  Irish,  20  IMaine,  444. 

3  Steinman  v.  Tolivar,  13   Mis. 
590. 

*  Gales  V.  Shipp,  2  Bibb,  241. 


(a)  Only  the  parties  to  a  motion  for  a  new  trial  can  complain  of  au 
order  denying  such  trial.     Calderwood  v.  Brooks,  28  Cal.  151. 


cir.  VI.]  WAIVER.  83 

if  you  had  stood  upon  your  exception,  the  party  had 
other  evidence,  and  need  not  have  put  the  cause  upon 
this  point. "^ 

§  2.  In  reference  to  the  particular  ground  of  motion  for 
a  new  trial,  consisting  in  tJie  incompetency  or  misconduct  of 
jurors;  the  distinction  is  made,  that  incompetency  of  a 
juror,  if  known  to  the  losing  party  before  trial,  and  not 
objected  to,  is  no  ground  for  a  new  trial  f  as  in  case  of  rela- 
tionship •.''(a)  though  it  is  otherwise  with  an  objection  to  a 
juror  which  would  be  good  cause  of  challenge,  if  not  dis- 
covered till  after  the  verdict.^(Z/)  Thus,  if  a  person,  who 
was  a  juror  in  one  trial,  is  also  a  juror  in  another  trial  of 
the  same  cause,  the  verdict  will  not  be  set  aside  for  that 
reason,  more  especially  without  proof  of  the  party's  igno- 
rance of  the  fact.  And  even  such  proof  might  be  un- 
availing ;  since,  by  the  exercise  of  ordinary  diligence, 
the  party  might  have  ascertained  the  fact,  and  made  the 
objection  at  the  time  of  impanelling  the  second  jury.^ 
So,  that  a  petit  juror  had  been  a  member  of  the  grand 
jury,  which  had  returned  a  true  bill  against  the  defend- 

'  Per  Lord  Holt,  Wright  v.  Sharp,  See  Orrok  v.  Com.  Ins.  Co. ,  21  Pick. 

1  Salk.  288.  457;  Brunshill  y.  Giles,  9  Bing.  13. 

2  Lisle  V.  The  State,  6  Mis.  426  ;  '  Hayward  v.  Calhoun,  2  Ohio 
Looper  v.  Bell,  1  Head,  37-3.  (N.  S.)  1G4 ;  Fitzitatrick  v.  Harris, 

3  Tilton  V.  Kimball,  53  Maine,  16  B.  Mon.  501;  Quincbaug,  &c.  ». 
500.  Leavens,  20  Conn.  87. 

*  Cain  V.  Cain,  1  B.  Mon.  213. 

[a]  An  objection  that  a  judge  is  not  impartial  must  be  taken  at  the 
trial,  if  then  known  to  the  counsel.  Crosby  v.  Blanchard,  7  Allen,  385. 
Any  objection  to  the  competency  of  a  sheriff's  jury,  on  the  ground  that 
they  were  not  regularly  certified  or  summoned,  will  be  waived,  unless 
taken  at  the  tiial.  Jameson  v.  Androscoggin,  52  Maine,  412  ;  Fowler  v. 
Middlesex,  6  Allen,  92. 

(&)  In  all  trials  in  courts  of  record,  it  is  the  constitutional  right  of  a 
party  to  demand  a  jury  of  twelve  men,  and,  though  no  exceptions  are 
taken  to  proceeding  to  trial  with  a  less  number,  the  party  may  still  move 
in  arrest  of  judgment.  The  defect  will  not  be  considered  as  waived  or 
consent  presumed,  unless  entered  of  record.  Scott  v.  Russell,  39  Mis.  407. 
See  p.  86. 


84  THE    LAAV    OF   NEW    TRIALS.  [cil.  VI. 

ant,  if  a  sufficient  ol)jeetion,  sliould  ]iavcl)ccn  urged  wlicu 
the  jury  Avero  iiiijianelled  ;  or  the  respondent  sLould  have 
presented  liis  atHdavit,  that  the  fact  was  not  then  known 
to  hinu'  So  in  case  of  any  irregularity  in  impanelling 
the  jury.^  So,  where,  at  the  trial  of  an  action  against  an 
insurance  company,  it  appeared  that  the  sheriff,  who  had 
returned  a  talesman  to  serve  on  the  jury,  was  a  stock- 
holder in  such  company,  and  this  circumstance  was 
known  to  the  junior  counsel  for  the  plaintiff  soon  after 
the  trial  hegan,  but  no  objection  was  made  till  after  the 
trial  had  proceeded  for  some  time;  held,  this  was  a  waiver 
of  any  exception  to  the  competency  of  such  juror.^  So, 
in  a  criminal  case,  the  defendant  is  not  entitled  to  a  new 
trial  on  the  ground  that  a  juror  was  taken  from  the  panel, 
under  the  erroneous  supposition  that  there  was  good 
ground  to  challenge  him,  and  another  juror  substituted, 
if  the  defendant  did  not  object  at  the  time.*  So  a  party 
who  refuses  to  challenge  any  jurors,  giving  as  a  reason, 
that,  if  he  does,  the  panel  will  be  filled  from  the  by- 
standers, all  the  drawn  jurors  except  twelve  having  been 
discharged  by  the  court ;  thereby  waives  his  right  to  chal- 
lenge, and  cannot  afterwards  object,  on  writ  of  error,  to 
the  jury.-^  So,  if  a  juror  is  permitted  to  be  sworn  without 
being  interrogated  as  to  his  competency,  it  is  a  waiver  of 
objection  to  him  on  the  ground  that  he  is  prejudiced ;  but, 
if  he  was  examined,  it  must  be  presumed  that  he  was 
impartial  unless  it  appear  otherwise.^  So  a  party  may 
object  to  the  examination  of  a  juror,  without  oath,  as  to 
his  competency ;  but  if  he  permits  the  question  to  be  put 
to  the  juror,  and  answered  by  him,  without  requiring  him 
to  be  sworn,  he  waives  the  objection.^  So,  where  a  party 
applied  for  a  review,  upon  the  ground  that  a  juror  was 
jjartial,  having  before  the  trial  formed  and  expressed  a 

•  McGrhee  v.  Sliafer,  9  Tex.  20.  <  Com.  v.  Stowell,  0  Mot.  572. 

-  People  V.  Coffman,  24  Cal.  230.  ^  Miller  v.  Wilson,  24  Pciin.  114. 

'  Orrok   r.  Commonwealth   lus.  ^  Ale.xander  v.  Dunn,  .1  Ind.  122. 

Co.,  21  Pick.  456.  "  Trellinger  v.  Webb,  3  Ind.  198. 


CII.  VI.]  WAIVER.  85 

decided  oj.inion  against  the  petitioner's  case,  and  also  pre- 
judice and  hostility  against  him  personally  ;  and  the  juror, 
being  called  on  to  explain,  testified  that  he  had  spoken 
on  the  subject,  but  denied  any  hostility  to  the  petitioner: 
held,  the  objection  should  have  been  taken  before  the  trial, 
and  the  petition  was  overruled.^  So,  where,  during  the 
trial,  one  of  the  parties  was  informed  of  the  incompetency 
of  a  juror,  l)ut  neglected  to  ascertain  the  fact  or  make 
objection  ;  held,  a  motion  for  a  new  trial  upon  this  ground, 
upon  affidavits  showing  that  proof  of  the  fact  could  not 
be  sooner  obtained,  was  rightly  overruled.^ 

§  3.  The  same  rule  is  adopted  with  reference  to  the  im- 
proper change  of  a  juror.^  So  a  juror  v^as  asked,  "  Do  you 
reside  in  the  city?"  and  answered  in  the  affirmative.  To 
the  next  question,  "Have  you  lived  here  six  months?"  he 
answered  in  the  negative.  The  State's  counsel  challenged 
him  for  cause,  and  the  challenge  was  sustained.  Held,  1, 
that  there  was  no  necessary  connection  between  the  above 
questions,  and  that  the  second  question  and  answer  must 
be  taken  to  refer  to  the  county  and  not  the  city.  And 
further,  that  silence  of  the  opposing  counsel  at  the  time 
showed  an  acquiescence  in  the  construction  put  by  the 
court  upon  the  answer,  and  especially,  since  he  had  made 
no  effort  to  show  such  juror  to  have  been  competent,  he 
could  not  assign  the  sustaining  of  the  challenge  as  error.* 
So,  although  (in  Georgia)  a  juror  is  disqualified  from  serv- 
ing on  a  trial  of  felony  who  has  not  resided  in  the  county 
for  six  months;  after  such  juror  has  been  sworn,  the  ob- 
jection is  too  late,  even  though  the  disqualification  was 
not  known  to  the  prisoner  nor  his  counsel.^  (So,  after  the 
jury  list  had  been  called  over  in  the  presence  of  the  ac- 
cused and  his  counsel,  five  jurors  sworn,  and  four  peremp- 

•  Haskell  v.  Becket,  3  Grcenl.  92.     tcr  v.  State,  17  Ala.  434  ;  Romainc 

2  Sleight   V.  Heuuing,  13  Mich.     v.  State,  7  Ind.  G3. 

371.  *  Boyd  v.  State,  17  Geo.  104. 

3  Com.   V.  Stowell,  9  Met.  573  ;        s  Epps  v.  State,  19  Geo.  103. 
State  V.  Lytle,  5  Ired.  58;  McAUis- 


86  THE    LAAV    OF    NEW    TRIALS.  [CII.  VI. 

tory  challenges  made  by  tlie  i)risoner;  his  counsel  moved 
for  a  continuance,  on  the  ground  that  various  jurors  in 
the  list  were  not  in  attendance,  nor  within  the  jurisdiction 
of  the  court,  and  were  not  liable  to  jury  service,  and  that 
some  of  thoni  had  been  excused  previous  to  the  list  being 
served  on  the  prisoner.  Held,  on  the  same  i»rinciple 
adopted  in  ap[)lications  for  new  trial,  the  accused  had 
waived  any  objection  to  the  jianel,  and  it  was  too  late 
to  move  for  a  continuance  for  the  reasons  above  stated.') 
So  (in  Mississippi)  although  under  Rev.  Code,  497,  art. 
12G,  a  juror  over  sixty  years  of  age  is  incompetent,  the 
objection  is  waived  unless  made  at  the  trial,  whether  the 
party  then  actually  knew  the  fact  of  tlie  juror's  disquali- 
fying age  or  not.^  So  the  objection  to  a  jury  that  it  con- 
sists of  less  than  twelve  is  held  to  be  waived  by  consent 
of  the  party  who  has  been  tried  by  such  jury.^(a) 

§  4.  More  especially  partiality  of  a  juror  is  held  no 
ground  of  objection,  if  waived  by  both  parties.*  So  in  a 
suit  against  a  town,  for  injury  caused  by  defect  in  a  high- 
way, a  verdict  was  rendered  for  the  plaintiff.  The  de- 
fendants moved  in  a;  rest  of  judgment,  upon  the  ground 
that  a  juror  was  a  land-owner  and  tax-payer  of  the  town. 
Eut  the  court,  remarking  ujion  the  "  ungracious"  character 
of  the  application,  as  the  juror's  interest  was  wholly  in 
favor  of  the  town,  and  for  the  reason  that  the  interest 

'  Rtator.  Lindspv,  14La.  An.42.         «  Van    I51anciim  v.  The  People, 

2  Wil  iams  v.  State,  87  Miss.  407.     IG  111.  o(J4. 

3  ISIurphy  v.  Com.,  1  Met.  Ky. 
365. 


(a)  See  p.  83,  n.  b.  In  the  case  of  Lord  Pacres,  tried  in  the  reign  of 
Henry  VIII.  for  treason,  one  question  was  whether  he  might  waive  a 
trial  by  his  peers,  and  be  tried  by  the  country;  and  the  judges  agreed 
that  he  could  not,  for  it  would  be  contrary  to  Magna  Charta,  and  the 
prosecution  was  at  the  King's  suit.  Kelyng,  59.  Ace.  1  Woode.  Lect. 
340  ;  3  Inst.  30 ;  Canccmi  c.  the  Teuple,  4  Sniilh  (18  N.  Y.)  128. 


CH.  VI.]  WAIVER.  87 

must  have  been  known  to  the  town  officers,  overruled  the 
motion.^ 

§  5.  It  is  no  ground  for  a  new  trial,  that  the  jury  who 
tried  the  case  had  been  reprimanded  by  the  court  for  mis- 
behavior in  a  previous  case,  no  exception  having  been 
made  at  the  trial.^  jSTor  that  a  juror  was  related  to  one 
of  the  parties,  if,  at  the  opening  of  the  case,  the  other 
part}--  was  present,  and  knew  of  the  disqualification,  and 
did  not  object,  although  he  was  then  ignorant  of  the  law 
creating  the  disqualification.^ 

§  6.  Upon  the  grounds  above  stated,  to  obtain  a  new 
trial  for  the  disqualification  of  a  juror,  it  is  held  that 
both  the  party  and  his  attorney  must  show,  by  affidavit, 
that  it  was  impossible  for  either  of  them,  by  reasonable 
diligence,  to  have  discovered  the  fact  in  time  to  object  at 
the  impanelling  of  the  jury.''  Though,  in  the  same  State, 
the  less  stringent  rule  was  adopted,  that,  upon  an  indict- 
ment for  murder,  a  motion  for  a  new  trial,  on  the  ground 
that  a  juror  had  expressed  an  opinion  before  the  trial,  but 
denied  it  when  questioned,  before  being  sworn,  cannot  be 
supported,  without  proof,  by  affidavit,  or  otherivise,  that 
the  fact  was  unknown  to  both  the  accused  and  his  counsel, 
at  the  time  the  jury  was  impanelled.^  So,  on  a  motion 
for  a  new  trial,  because  one  of  the  jurors  was  an  alien, 
the  affidavit  of  the  juror  to  that  efi'ect  was  read,  but 
there  was  no  affidavit  of  the  party  that  he  did  not  know 
this  at  the  time  of  the  trial ;  and  it  was  held  that,  if  the 
party  did  know  it,  he  had  waived  all  objection,  and,  if  he 
did  not,  he  should  have  supported  his  motion  for  a  new 
trial  by  an  affidavit  to  that  effect.^ 

•  Bailey  f.  Trumbull,  31  Conu.  *  Eastman  v.  Wvj;]it,  4  Ohio  (N. 

581.  S.)  l.-.G. 

2  Kelly  V.  State,  19  Geo.  425.  s  p^rks  v.  State,  4  Ohio  (N.  S.) 

3  Dollofi"  V.  Stimpson,  33  Maine,  234. 

540.     Ace.  McLellan  v.  Crofton,  6        «  Seal  v.  The  State,  13  S.  &  M. 
Greenl.  307.  398. 


8S  THE    LAW    OF   NEW    TRIALS.  [CII.  VI. 

§  7.  The  same  rule  is  adopted  with  reference  to  the 
evidence  upon  a  trial.^  Objections  cannot,  in  the  first  in- 
stance, be  made  upon  the  motion  for  a  new  triah  The 
absence  of  the  party  against  whom  the  evidence  is  offered 
makes  no  difference.^  Thus  the  proper  time  to  object  to 
the  formal  proof  of  a  paper  is  when  it  is  offered  in  evi- 
dence f  or  that  a  note  was  not  properly  stamped.'*  So 
there  can  be  no  exception  for  variance,  unless  taken  at  the 
trial.  ''The  respondent,  by  not  raising  the  question  of 
variance  at  tlie  projier  time,  must  be  held  to  have  waived 
it,  because  his  omission  deprived  the  petitioner  of  an 
opportunity  to  make  the  necessary  amendment."^  So  the 
admission  of  illegal  testimony,  not  objected  to  at  the 
time,  or,  at  least,  on  the  argument  of  the  case,  is  not  a 
good  ground  for  a  new  trial.^  And  the  refusal  of  a  new 
trial  is  not  ground  for  a  writ  of  error;  though  exception 
need  not  be  taken  at  the  time.^  So,  where  none  of  the 
evidence  is  excepted  to,  and  no  instructions  asked,  the 
Supreme  Court  will  not  disturb  a  verdict,  found  by  the 
court  sitting  as  a  jury,  if  the  evidence  supports  it.^ 


'  WUhereU  v.  Maine,  49  Maine,  2?,  Geo.  57;  "Wheeler  v.  State,  ib. 

200  ;  Morrison   v.  Hays,    10    Geo.  202  ;  McCoy  v.  Jones,  9  Tex.  363  ; 

294;  State  v.  Gordon,  1  R.  I.  179.  Hunter  v.  Waite,  11  ib.  Bo;  White 

2  Clark  V.  Gridley,  35  Cal.  398.  v.    Chadbourne,    41    Maine,     149  ; 

3  Perrott  v.  Shearer,  17  Mich.  48.  Stone  v.  The  State,  4  Humph.  27; 
*  Thomson  ».  Wilson,  2G  Iowa,  Jacobs  v.   Banu-or,    4  Shcp.    187; 

120.  Goldsby  v.  Gentle,  5  Blackf.  436  ; 

5  PerBigelow,  C.  J.,  Hutchinson  Lee  v.  Oppenhcimer,  34  Maine,  181; 
V.  Gurley,  8  Allen,  23;  Slier  v.  Main  i'.  Gordon,  7  Eng.  651  ;  Frost 
Suriiet,  iO  S.  ct  M.  154.  See  White  v.  Goddard,  25  Maine,  419;  Gold- 
V.  Ilichmoud,  16  Oliio,  5;  Watson  smith  v.  Picard,  27  Ala.  142  ;  Hub- 
V.  McLaren,  19  Wend.  557  ;  Turn-  bard  p.  Knssell,  24  Barb.  404  ;  Bond 
bull  V.  Withersiioon,  Walker,  350  ;  v.  Baldwin,  9  Geo.  9  ;  Bishop  v. 
Hennen  v.  Gilman,  20  La.  An.  241  ;  The  State,  ib.  1^1  ;  Flint  v.  Clark, 
Clark  V.  Bouvain,  il).  70;  Burn-  13  Conn.  361  ;  Thurman  ?'.  Came- 
side  V.  Grand,  47  N.  H.  554.  ron,  24  Wend.  87  ;  Gilliam  v.  State 

6  Conway  v.  Case,  22  HI.  127;  Bank,  2  Scam.  245;  S.  C,  6  ib. 
Waudiop  ?).  Weeks,  ib.  350  ;  Com-  248;  Harmon  d.  Thorneton,  2  ib. 
mcrcial    liank    w.   Martin,  9   S.  &  351.     See  p.  96. 

]\L  613;   Montecth  v.  Caldwell,  7  '  9  Geo.  9;  Kenyon   v.  Suther- 

Humph.    13;    Burnside  ?;.  Union,  land,  3  Gilm.  99  ;  McRaven  ».  Mc- 

&c. ,  10  Rich.  113  ;  Johnson  v.  Ale.v-  Guire,  9  S.  &:  M.  34. 

under,  14  Tex.  382;  Licet  v.  State,  **  Reed  v.  Harrington,  13  Mis.  39. 


en.  VI.]  WAIVER.  89 

§  8.  The  same  rnle  applies  to  that  part  of  the  charge  of 
the  court  which  relates  to  the  evidence.'  Unless  parties 
moving  instructions,  in  regard  to  the  admissibility  of  evi- 
dence, point  out  the  peculiar  testimony  objected  to,  the 
court  may  refuse  the  instruct ions.^ 

§  9.  And  no  exception  lies  for  the  admission  of  evi- 
dence applicable/or  cmypmyoses,  but  objected  to  generally ; 
more  especially  unless  the  judge  is  requested  to  instruct 
the  jury  what  those  purposes  are.^  So  a  motion  to  ex- 
clude evidence,  a  part  of  which  is  legal,  may  be  overruled ; 
since  the  court  is  not  authorized  to  reject  that  portion 
which  is  proper,  nor  required  to  sift  the  evidence  so  as  to 
separate  the  legal  from  the  illegal.* 

§  10.  So  an  objection  to  testimony  on  one  ground  is  a 
waiver  of  others.* 

§  11.  "Objections  to  the  competency  of  a  witness  must 
be  made  before  his  examination,  if  known  to  the  party 
objecting,  or  they  will  not  avail.  And,  if  this  knowledge 
is  first  acquired  after  the  examination  of  the  witness  has 
commenced,  the  objection  is  waived  if  the  witness  is 
suffered  to  proceed  after  the  discovery."^  So,  if  a  witness, 
in  answering  a  question,  proper  in  itself,  propounded  by 
the  party  calling  him,  state  matter  illegal,  and  not  in  re- 
sponse to  the  question;  the  party  calling  him  may  except 
to  the  testimony,  and,  on  his  exception,  the  court  should 
exclude  so  much  of  the  answer  as  is  improper  from  the 
jury.^     But,  unless  objection  to  a  question  put  to  a  witness 

•  Coil  V.  Wallace,  4  Zabr.   291  ;  ^  Wyatt  v.  Steele,  20  Ala.  639 ; 

Deloachw.  Walker.  7 How.  (Miss.)  Martin  v.  Herdostv,  27  ih.  458. 

164.  5  Garrett  v.  Garrett,  27  Ala.  087. 

2  Harvey  v.  Epes,  12  Gratt.  153.  s  Per  Tenney,    C.   J.,    State    v. 

3  Peo;g  V.  Warford,  7  Md.  582  ;  Damery,  48  jMaine,  830  ;  Donelsou 
Christian  v.  Dripps,  28  Penn.  271  ;  «.  Taylor,  8  Pick.  390  ;  27  Ala.  142; 
Smith  V.  Cansey,  28  Ala.  655  ;  Up-  Crnnip  v.  Starke,  23  Ark.  131. 
son  «.  Raitord,29  ib.  188  ;  Bigelow  ^   Morgan  o.  Winston,  2  Swan, 
V.  Ward,  ib.  471.  472. 


90  THE    LAW    OF    NEW    TRIALS.  [flL  VI. 

1)0  seasonably  made,  the  answer  will    not  furnish  g-round 
for  exception.'     And  a  g-eneral  ohjection  to  the  eompe- 
tency  of  a  witness  is  of  no  avail.-     Thus,  in  an  action  by 
a  sheriff  for  the  use  of  execution  creditors  to  recover  the 
price  of  property   sold  under  tlie  execution,  the  record 
showed  that  tliey  proposed  to  indemnify  him  against  costs, 
and  that  he  then  testified,  although  in  fact  he  had  not 
been  indemnified.     Held,  the  defendant  waived  the  ob- 
jection.3     ^,^(j  where  objection  was  talcen  to  evidence  ad- 
mitted by  the  court,  and  the  party  objecting  agreed  that 
the  objection  might  rest  until  the  argument,  to  be  then 
pursued  if  he  should  think  fit,  and   in   the  argument  no 
allusion  to  it  was  made  nor  any  ruling  asked  of  the  court; 
licld,  the  objection  was  waived.^    So  objection  to  the  com- 
petency of  a  defendant  to  testify,  in  an  action  brought  by 
the  assignees  of  a  deceased  insolvent  debtor,  must  be  made 
before  the  testimony  has  been  given.-'^    So,  where  a  (juestion 
of  usury  was  raised,  and  the  defendant,  who  was  a  com- 
petent witness  to  prove  the  usury,  was  allowed  without 
objection  to  testify  to  other  facts;  held,  an  objection  to 
his  general  competency  could  not  be  taken  on  error,  or  in 
the  form  of  instructions  to  disregard  his  evidence."     And 
an  objection  to  a  question  in  toto  is  such  a  waiver  of  an 
objection  merely  to  its  form,  that,  if  it  is  otherwise  valid, 
its  improper  form  will  not  alone  be  a  ground  for  reversal; 
the  exception  having  been  taken  without  mentioning  the 
grounds  of  objection.''     So,  when  the  only  objection  to  the 
admission  of  evidence  was  because  it  was  "irrelevant  and 
incompetent,"  it  cannot  afterwards  be  objected  to  on  the 
ground  that  no  proper  foundation  was  laid  for  it.*     So  the 
omission,  in  the  motion  for  a  new  trial,  to  make  an  alleged 
illegal  admission  of  evidence  a  ground  therefor,  is  a  waiver 

•  State  t).  Xnttiivj:,:{nMain(\  5:59.         ''  Lovcriug  b.  Langlcy,  8  Minn. 

2  Pegg  V.  Wartbrd,  7  Mel.  582.         107. 

3  Glenn  V.  Black,  31  Ga.  8!):$.  ^  Gordon  «.  Godell,  34  111.  429. 

*  Iloxie   V.   Home   Ins.    Co.,  33         ^  BulU-ick   v.  Gllman,    22   Wis. 

Conn.  21.  ^•">^>- 

8  People  V.  Frank,  28  Cal.  507. 


CH.  vl]  waiver.  91 

of  the  question  of  illegality  in  the  court  of  appeal.'  So, 
where  a  plaintiff  offered  certain  evidence,  which  was  ruled 
out  on  the  defendant's  objection,  and  did  not  insist  at  the 
time,  but  in  his  argument  upon  the  prayers  for  instruc- 
tions claimed  a  right  to  rely  on  this  evidence,  and  excepted 
to  the  decision  of  the  court  sustaining  the  defendant's 
objections  to  his  doing  so ;  held,  he  had  waived  his  right 
to  except.^ 

§  12.  The  same  rule  applies,  where  evidence  consists  of  a 
mere  inference  of  the  witness,^  or  where  counsel  did  not 
continue  to  press  the  examination  of  a  witness  unwilling 
to  testify,  lest  the  court  should  commit  the  witness  for 
contempt,''  or  to  the  allowance  of  a  leading  question,^  or 
even  in  a  criminal  case,  where  a  witness  for  the  prosecu- 
tion testified  to  material  facts  without  being  sworn ;  if  it 
is  not  alleged  in  the  petition  that  the  respondent  and  his 
counsel  were  ignorant  of  the  fact  till  after  the  verdict, 
and  it  is  not  shown  that  the  respondent  has  thereby  sus- 
tained any  injury,  or  that  the  statements  made  by  the 
witness  were  not  true.^(a)  So,  where  a  witness,  called  for 
the  defence,  was  too  much  intoxicated  to  comprehend  the 
obligation  of  an  oath,  and  the  court  refused  to  permit 
him  to  testify,  but  told  the  prisoner  he  might  afterwards 
recall  him,  but  he  was  not  so  recalled ;  held,  no  ground 
for  a  new  trial.^  l^or  that  an  important  witness  was  drunk 
and  stupid,  or  "so  disguised  with  liquor"  that  he  could 
not  testify  as  clearly  as  he  would  otherwise  have  done, 
&c.,  this  being  a  fact  known  to  the  party  at  the  time,  and 

'  Graham  v.  Roark,  28  Ark.  10,  *  Hinds  v.  Terry,  Walker,  80. 

2  Cecil  Bank  v.  Heald,  35  Md.  s  Kemmerer®.  Edelman,  2oPenn. 

5G2.  143. 

»  Nichols  V.  Turney,  15  Conn.  •*  State  v.  Camp,  23  Vt.  551. 

102.  7  State  v.  Underwood,  6  Ired.  06. 

(a)  Though  counsel  object  to  a  question  put  to  a  witness  during-  the 
trial,  the  exception  will  not  be  considered  as  made,  unless  it  is  actually 
taken  and  signed  by  the  judge.     Scott  v.  Lloyd,  9  Pet.  418. 


92  THE    LAW    OF    NEW    TRIALS.  [CH.  VI. 

■which  Avoiild  liavc  entitled  him  to  ii  contimiance.'  So, 
where  persons  are  made  defendants  to  a  criminal  prosecu- 
tion, to  prevent  their  testifying  for  the  defence,  the  party 
desiring  their  testimony  should  move  for  a  separate  trial, 
which  the  court  will  grant  or  not  in  its  discretion.  If 
there  be  no  testimony  against  one  of  several  defendants, 
motion  should  be  made  for  a  separate  verdict  in  his  case, 
whicli  being  had,  he  would  become  a  comjietent  witness 
for  the  defence.  And  the  neglect  or  omission,  in  such  a 
case,  to  move  for  a  separate  trial  or  verdict,  is  a  sufhcient 
ground  for  refusing,  though  it  is  competent  for  the  court 
to  grant,  a  new  trial.^ 

§  13.  Exceptions  to  all  the  answers  to  interrogatories, 
not  well  founded  as  to  some  of  them,  will  be  overruled. 
The  objectionable  parts  should  be  pointed  out.^  So,  where 
objection  is  made  to  the  admission  of  two  depositions,  and 
one  is  unobjectionable,  the  objection  nuxy  be  overruled.^ 
And,  in  general,  a  party  objecting  to  written  evidence  for 
any  cause  not  going  to  its  relevancy  or  com])etency,  but 
only  to  the  manner  of  its  authentication  or  proof,  must 
specially  assign  the  grounds  of  objection.^ 

§  14.  AVhen  objection  is  made  to  the  admission  of  a 
record  in  evidence,  the  j)articular  objections  must  be  speci- 
fied." Tlie  court  is  not  bound  to  search  through  a  long 
record  or  other  instrument  otlered  in  evidence,  to  see  if 
there  may  not  possibly  be  some  objection  to  its  admission, 
which  might  have  been  taken. ^  kSo,  where  a  deed  was 
invalid  to  pass  the  title  it  was  intended  to  convey,  but 
was  admissible  as  a  link  in  the  plaintiff's  chain  of  evi- 

'  Land   v.   IVIillor,    7  Tox.  453  ;  5  j^yan  v.  Jackson,  11  Tex.  301. 

Shipp  11.  Sugu:ott,  y  B.  Mon.  5.  ^  g,atc   v.  Gates,    30    Mis.   400  ; 

2  Anthony  v.  The  State,  2  R.  I.  McCartney  y.  Sheiianl,  21  Mis.  573. 
305.  '  McCartney  v.  Shepard,  21  Mis. 

3  Ford  ».  Clements,  13  Tex.  592.     573. 
^  Tliomas  v.  De  Graffcnreid,  27 

Ala.  GDI. 


CH.  VI,]  WAIVER.  93 

dence,  a  motion  to  excliule  it  altogether  was  rightly  over- 
ruled.^ So,  if  a  party  reads  in  evidence  to  the  jury  a  certi- 
fied copy  of  a  deed,  which  purports  to  have  been  executed 
by  husband  and  wife,  without  any  attempt  to  limit  its 
effect  as  proof;  he  thereby  concedes  its  genuineness,  and 
cannot  be  heard,  in  an  appellate  court,  to  say  that  it  was 
not  proved  ;  although,  according  to  the  memorandum 
indorsed  on  it  by  the  clerk  of  the  court  in  which  it  was 
recorded,  it  was  admitted  to  record  on  the  acknowledg- 
ment of  the  husband  alone,  and  the  party  against  whom 
it  was  ottered  "  admitted  that  the  original  had  been  ex- 
ecuted, proved,  acknowledged,  and  recorded,  as  indorsed 
and  certified  on  said  copy."^  So,  a  deposition,  with  a  paper 
annexed,  being  offered  in  evidence  and  objected  to  gene- 
rally, and  the  objection  being  overruled,  and  the  deposi- 
tion and  jiaper  read  to  the  jury ;  it  was  held,  on  exceptions, 
that,  as  no  specific  objection  was  taken  at  the  trial  to  the 
use  of  the  ^laper,  such  objection  could  not  afterwards  be 
made.2  ISTor  will  a  new  trial  be  granted  for  the  admission 
of  a  deposition,  upon  the  ground,  that  the  notary  public, 
before  whom  it  was  taken,  had  no  legal  power  to  take 
it ;  if  the  deposition  was  objected  to  entirely  on  other 
grounds.^  So,  where  a  particular  description  of  testimony 
is  held  to  be  admissible,  and  some  portion  of  the  same 
description  is  afterwards  introduced,  the  objecting  party 
must  take  exceptions  to  it  at  the  time  when  it  is  intro- 
duced. It  is  too  late  to  make  the  objection  when  the 
cause  has  been  argued  and  the  j  ury  charged.^  So  the  read- 
ing of  an  improper  paper  by  counsel,  in  his  argument  to 
the  jury,  cannot  be  assigned  for  error,  unless  it  is  objected 
to  at  the  time,  and  the  objection  overruled,  and  made  part 
of  the  bill  of  exceptions.^     So,  where  particular  entries 

'  Olinger  v.  Sheplicrd,  12  Gratt.  "  Lyon  v.  Ely,  24  Conn.  507.    See 

462.  Kent  v.  Tyson,  20  N.  II.  121. 

2  Jenkins  v.  McConico,  26  Ala.  ^  prost   v.  Goddard,  25   Maine, 
213.  414. 

3  Waters  v.  Gilbert,  2  Gush.  27.  ^  Kenyou  v.  Sutherland,  3  Gilm. 

99. 


94  THE    LAW    OF    NEW    TRIALS.  [CIL  VI. 

ill  the  Looks  of  a  firm,  offered  in  evidence  for  the  ]mrpose 
of  sliowino;  their  insolvency  and  their  knowledge  of  it  at 
the  tiniL'  of  making  a  conveyance  to  a  pre-existing  creditor, 
were  ohjected  to  solely  on  the  ground  that  they  were  not 
original  entries,  nor  proved  by  the  clerk  who  made  them; 
held,  it  could  not  be  made  the  ground  of  a  motion  for  a 
new  trial,  that  the  most  important  entries  objected  to  ap- 
peared to  have  been  made  after  the  conveyance.^  So  the 
l)laintilf,  to  show  that  notice  of  protest  had  been  for- 
warded, in  due  season,  from  one  bank  to  another,  and 
from  that  to  the  indorser,  introduced,  without  objection, 
proof  of  certain  circumstances,  and  the  usage  of  banks, 
from  which  he  claimed  that  the  jury  had  a  right  to  infer 
such  notice,  and  the  court  so  instructed  the  jury.  Held, 
this  was  no  ground  for  setting  aside  the  verdict.^  So  ex- 
ceptions were  taken  to  the  records  of  a  proprietary,  on 
the  ground,  that  owners  of  a  lot  of  land  and  the  meeting- 
house thereon  were  not  such  tenants  in  common  as  were 
authorized  by  the  statute  to  incorporate  themselves  as  a 
proprietary  ;  but  the  objection  was  overruled,  and  the 
books  admitted,  wnth  liberty  to  refer  to  them  in  the  argu- 
ment. It  was  insisted  on  the  argument,  that  the  propri- 
etors did  not  organize  themselves  agreeably  to  the  statute, 
and  that  this  would  appear  by  the  records,  thus  made  part 
of  the  case.  But  the  court  held,  that  these  objections 
were  not  now  open,  as  they  were  not  specifically  made  at 
the  trial.  If  this  had  been  done,  the  defects  in  the  record 
might  have  been  supplied  by  other  evidence.^  So  the  ob- 
jection, that  an  instrument  given  in  evidence  was  without 
seal,  in  a  case  where  a  seal  is  essential  to  its  validity,  must 
appear  to  have  been  taken  at  the  trial,  in  order  to  be 
ground  of  exceptions.^ 


•  Holbrook  v.  Jackson,  7  Ciish.  *  Iloward  v.  Ilayward,  10  Met. 

136.  408. 

i  New  Haven,  &c.  V.  Mitchell,  15  '  Gillett  v.   Campbell,  1  Denio, 

Conn.  200.  ^30. 


CH.  VI,]  WAIVER.  95 

§  15.  A  new  trial  will  not  be  granted  upon  the  ground 
that  certain  declarations  were  admitted  in  evidence,  which 
were  not  admissible;  if  the  objection  at  the  trial  was,  not 
to  the  declarations  themselves,  but  to  the  mode  of  i)roving 
them,  by  the  person  to  whom  they  were  made,  instead  of 
the  one  who  made  them.^ 

§  16.  The  evidence  must  be  objected  to  at  the  time, 
though  it  involves  both  law  and  fact;  as  that  certain  per- 
sons were  the  heirs  of  another  person.^ 

§  17.  Ko  exception  lies  for  the  admission  of  testimony, 
without  notice  of  special  matter,  unless  objected  to.^ 

§  18.  In  accepting  service  of  interrogatories,  a  party 
stipulated  that  he  thereby  "waives  no  objection  to  their 
legality,  pertinency,  relevancy,  or  competency."  Held, 
this  did  not  dispense  with  an  express  objection  to  the  wit- 
ness on  the  ground  of  interest.* 

§  19.  It  is  held  that  a  new  trial  will  not  be  granted  for 
the  rejection  of  evidence,  unless  it  appears  that  it  was 
pi^essed^  and  deliberately  rejected.^  Nor  where  the  evidence 
is  excluded  on  cross-examination,  but  the  witness  after- 
wards called  by  the  objecting  party  and  fully  examined 
on  the  same  subject.^  So  where  no  objection  was  made 
to  want  of  proof  of  a  signature.'^  Or  where  an  objection 
to  evidence  was  first  raised  in  a  prayer  for  instructions.* 
Or  secondary  evidence  was  received,  but  not  objected  to.^ 
Or  where  there  was  a  variance  not  objected  to.'''  (See  p. 
88.)     Or  a  witness  was  not  sworn,  but  there  was  no  im- 

'  Wilcox  V.  Green,  28  Conn.  573.         '  Morris  v.  Henderson,  37  Miss. 

2  Robson  V.  Watts,  11  Tex.  764.  492. 

3  Miller  v.  Stem,  13  Penn.  883.  «  Nalle  v.  Gates,  20  Tex.  315. 
*  Hudson  V.  Crow,  36  Ala.  515.           »  Goode  v.  Smith,  13  Cal.  81. 

5  Whitehouse    v.    Hemmant,    3       '«  Blair  w.  Corby,  29  Mis.  480;  Mc- 
Hurl.  &  N.  945.  Hardy  v.  Wadsworth,  8  Mich.  349. 

5  Lilkin  v.  People,  8  Mich.  357. 


96  THE    LAW    OF    NEW    TRIALS.  [CII.  VI. 

mediate  objection.^  80,  wlicre  one  party  offered  evidence 
of  a  declaration  made  in  presence  of  tlie  other,  without 
reply,  and  the  latter  objected,  solely  upon  the  ground  that 
it  was  not  heard  by  him,  and  to  this  point  alone  the  atten- 
tion of  the  jury  was  called ;  the  objection  cannot  be  raised, 
upon  a  hearing  of  exceptions,  that  the  declaration  was  not 
one  which  called  for  a  reply. ^  So,  where,  on  a  trial,  cer- 
tain facts  are  assumed  which  are  necessary  to  the  action, 
the  losing  party  on  a  motion  for  a  new  trial,  on  a  case 
made,  cannot  insist  on  the  absence  of  such  facts.^(a) 

Nor  will  a  new  trial  be  granted  where  a  witness  was  in 
attendance  a  part  of  the  term,  and  then  absented  himself 
before  trial  without  leave.  The  party  should  have  de- 
manded a  capias.*  ISTor  wdiere  new  testimony  is  dis- 
covered, after  the  argument,  but  the  party  desiring  to 
avail  himself  of  it  does  not  ask  to  have  it  admitted.*  So 
a  new  trial  will  not  be  granted  because  evidence  was  ad- 
mitted, but  without  objection,  proving  two  assaults,  when 
there  was  but  one  charged  in  the  indictment.  '^ 

§  20.  The  same  rule  is  applied  to  alleged  misdirection  of 
the  presiding  judge.  Objection  must  be  made  at  the  time 
when  the  instructions  in  question  are  given  or  refused.^(6) 

'  Slantcr  v.  Whitelock,  12  lud.  ^  Drake  v.  The  Commonwealth, 

338.  10  B.  Mon.  225. 

2  Ilildreth V.Martin, 3 Allen, 371.  '  Brown  v.  Bristol,  7  II.  &   N. 

'  Holbrook  v.  Wight,  24  Wend.  lOOG  ;  Sarle  v.  Arnold,  7  K.  I.  582; 

169.  Hill  V.  Ward,  2  Gilni.  285  ;  How  v. 

*  Stewart  v.  Small,  5  Mis.  525.  Simms,  \(\  Mis.  431;  Allen  v.  Blunt, 

5  Fleet  V.   llollenkamp,    13   B.  2  \\.  cV  :M.  121  ;  Geer  ».  Archer,  2 

Mon.  219.  Barb.   420;  Floersh   y.  Bank,  &c., 

10  Mis.  515. 

(a)  But  where  a  written  instrument  was  admitted  in  evidence  as  an 
original  paper,  on  the  assumption  and  belief,  without  question,  that  it 
was  such,  and  it  appeared  by  the  evidence  that  this  conclusion  was  not 
warranted,  a  new  trial  was  granted.  Savage  v.  D'Wolf,  1  Blatch.  Ct. 
Ct.  343. 

(fe)  But  where  the  court  above  have  by  law  authority  to  grant  a  new 
trial  for  any  cause,  the  strictness  of  this  general  rule  may  be  relaxed, 


CH.  VI.]  WAIVER.  97 

Every  point  of  law  intended  to  bo  made  must  be  brought 
to  the  attention  of  the  court  at  the  trial,  and,  if  not,  it  is 
not  matter  of  exception  that  the  court  did  not  express  an 
opinion  upon  it.^  Matter  of  law  not  brought  to  the  at- 
tention of  the  court  during  the  trial  will  be  considered  as 
waived,  and  cannot  be  taken  advantage  of,  on  the  argu- 
ment of  other  points  of  law  raised  by  exceptions.^  So,  when 
a  charge  is  not  full  upon  the  evidence,  or  is  even  ambig- 
uous, this  is  no  cause  for  a  reversal,  when  no  instructions 
beyond  those  given  are  asked  for.^  Error  in  stating  the 
evidence  is  waived  unless  noticed  at  the  time.*  Thus 
the  question,  whether  the  court  should  not  have  instructed 
the  jury,  that  the  release  of  one  defendant  released  the 
other  also,  must  be  raised  before  verdict.^     So  it  is  no 

'  Emery  fl.  Vinall,  26  Maine,  295.        •*  Cutler  v.  Welsh,  48  N.  H.  497. 

2  Parker  y.  Flagg,  26  Maine,  181.        ^  Gordon  v.  Pitt,  3  Clarke,  385. 

3  Rhodes  v.  Sherrod,  9  Ala.  63. 

and  a  new  trial  granted,  on  petition.  Thus,  although  a  party,  who  at  the 
trial  does  not  make  a  question  as  to  a  certain  fact,  and  present  it  to  the 
jury,  cannot  except  because  the  judge  refuses  his  request,  made  after  the 
argument,  to  instruct  the  jury  as  to  the  law  which  would  arise  upon 
such  fact;  yet,  upon  petition  for  a  new  trial,  the  court  may  receive  evi- 
dence of  what  passed  at  the  trial,  and,  if  they  are  satisfied  that  evidence 
was  given  upon  which  the  jury  might  have  found  such  fact,  and  also  that 
the  party  intended  to  make  it  a  point  in  his  case,  may  grant  a  new  trial, 
provided  such  fact,  if  proved,  would  change  the  result.  Dole  v.  Thurlow, 
12  Met.  157.  So  the  court  may  in  its  discretion  allow  exceptions  to  in- 
structions, although  not  taken  until  after  the  jury  had  withdrawn.  St. 
John  V.  Kidd,  26  Cal.  263.  In  Pennsylvania,  a  bill  of  exceptions  to  the 
charge  of  a  court  should  be  taken,  before  the  verdict,  in  open  court ;  and 
a  request  to  charge  the  jury  in  a  certain  way,  and  to  file  the  opinion  of 
record,  is  not  equivalent  to  a  bill  of  exceptions  so  taken,  without  which 
the  charge  of  the  court,  filed  in  pursuance  of  such  request,  is  not  a  sub- 
ject for  the  assignment  of  error.  Brattou  v.  Mitchell,  3  Barr,  44.  In 
England,  where  counsel  does  not  ask  that  a  certain  point  should  be  sub- 
mitted to  the  jury,  but  gets  leave  to  move  reserved,  he  cannot  ask  for  a 
new  trial,  on  the  ground  that  that  point  was  not  submitted  to  the  jury. 
Morgan  v.  Couchman,  24  P^ug.  L.  &  Eq.  321.  Where  the  case  was  re- 
ferred to  the  judge,  this  was  held  a  waiver  of  objections  to  previous  evi- 
dence and  rulings.     Hersey  v.  Verrill,  39  Maine,  271. 

7 


98  TIIK    LAW    OF    NEW    TRIALS.  [CU.  VI. 

o-roiind  of  exception,  that  the  court  submitted  the  con- 
struction of  a  written  instrument  to  the  jury,  if  done  at 
the  request  of  the  party  excepting,  and  if  the  true  legal 
construction  be  against  such  party.^ 

§  21.  More  especially  the  rule  is  laid  down,  that  a  party 
cannot  on  a  motion  for  a  ncAV  trial  complain  of  any  errors 
in  the  charge,  to  which  he  did  not  object,  and  which  did 
not  j)rejudice  him.^ 

§  22.  So,  if  a  dcfdulf  be  entered  by  consent  of  the  de- 
fendant, he  cannot  take  exceptions  to  the  ruling  of  the 
judge."  Upon  the  same  princii)lo,  a  new  trial  will  not  be 
granted  for  erroneously  ordering  a  nonsuit,  unless  the 
plaintiff  claimed  to  go  to  the  jury.<  As  where,  upon  the 
judge's  instructing  the  jury  that  the  plaintiff  was  entitled 
to  only  nominal  damages,  he  elected  to  be  nonsuited;'^  or 
where  a  plaintiff  replied  to  a  plea  of  the  statute  of  limita- 
tions, that  the  cause  of  action  arose  within  six  years,  but, 
being  unable  to  prove  it,  voluntarily  became  nonsuit,  and 
moved  to  have  the  nonsuit  set  aside,  in  order  that  he 
might  reply  the  issuing  of  a  writ  within  six  years.*'  But 
it  is  said,  "If  a  counsel  assents  to  a  nonsuit,  on  hearing 
from  a  learned  judge,  that,  if  the  case  goes  to  tlic  jury, he 
shall  direct  them  in  a  manner  which  the  court  above 
afterwards  thinks  incorrect,  we  are  bound  to  consider  the 
case  as  if  it  had  gone  to  a  jury  with  that  direction,  ami  a 
verdict  had  been  found  accordingly."' 

1  Kamlon  «.  Toby,  11  IIow.  U.  S.     ?;.  Boggess,   1  Scam.  281;  Holdcn 
493  V.   Cole,   1   Pcnn.   ;]03 ;    Milton  v. 

2  McDanicl  v.  Walker,  29  Geo.     Rowland,  11  Ala.  7:52. 

2GG.     Ace.  Hawkins  ;;.  Tucker,  3  ^  Woodman  o.  Valentine,  9  Shcp. 

Clarke,  2i;'.  ;  Govern.  Dill,  ib.  ;537;  401. 

Hall  i\  Denise,  0  ib.  'uU  ;  Cotton  v.  *  Kindred  v.  Bagg,  1  Taun.  10  ; 

AVatkins,   (I   Wis.   (;29 ;  Baltimore,  People   v.   Browne,    3    Gilm.    87; 

&c   V.  Besley,  14  j\Id.  424  ;  IMartin  Loin])ard  v.  Ciieever,  ib.  409  ;  Kls- 

V    The  People,    13   111.   341;  Ken-  worthy  i'.  Bird,  1  McClel.  09. 

ncdy  p.  Cunningham,  2  Met.  (Ky.)  ^  ]]utler  v.  Dorant,  3  Taun.  229. 

538-    Letton   r.  Young,    ib.    538;  ^  llulchiuson     v.    Brice,    Burr. 

Buckmastcr   v.    Cool,  l2   111.    74;  2692. 

Powers  V.  Allen,  14  Mis.  367 ;  Gor-  ^  Per  Ld.  Lyndhurst,  C.B.,  Alex- 
don  V  Gordon,   13  ib.   2ir);  Com-  auder  «.  Barker,  2  Tyrwh.  140. 
paret  v.  Hedges,  G  Blackf.  417;  Peck 


CH.  VI.]  WAIVER.  99 

§  23.  So,  leaving  to  tlie  jury  a  point  of  law  is  no  ground 
of  new  trial,  unless  noticed  at  the  time.^ 

§  24.  Upon  the  same  principle,  if  a  party  who  is  sur- 
prised  at  the  trial  allows  it  to  proceed,  without  making  his 
surprise  known  and  applying  for  a  delay,  and  the  verdict 
is  against  him,  he  cannot  have  a  new  trial  by  reason  of 
that  surprise.^  And  to  entitle  a  party  to  a  new  trial,  on 
the  ground  of  surprise,  not  only  must  he  show  merits,  but 
the  surprise  must  be  of  such  a  character  as  care  and  pru- 
dence could  not  provide  against.  The  slightest  negli- 
gence will  defeat  the  application  or  occasion  the  imposi- 
tion of  the  most  rigorous  terms.^  Thus,  on  a  motion  for 
a  new  trial  for  non-attendance  of  witnesses,  due  diligence 
must  be  shown  to  procure  their  attendance.  Subpoenaing 
them  on  the  morning  of  the  day  for  which  the  cause  was 
set  down  for  trial,  and  actually  tried,  is  not  due  dili- 
gence.^(a)  So  the  plaintiff  agreed  to  make  certain  admis- 
sions on  the  trial.  He  did  make  admissions,  which  were 
not  objected  to  at  the  time,  on  the  ground  that  they  were 
not  the  admissions  he  agreed  to  make.  Held,  that  after 
verdict  it  was  too  late  to  object  to  the  sufficiency  of  the 
admissions,  and  the  defendant  could  not  base  a  motion 
for  a  new  trial  upon  the  ground  of  surprise  in  respect 
thereof.^  So  a  new  trial  will  not  be  granted,  to  enable  a 
party  to  put  in  a  defence  known  to  him  before  the  verdict.'^ 
So  a  suit  was  instituted   against  several   defendants  in 


'  Doe  V.  Stricklaud,  8  Man.  G.  &  244 ;  Sheftall  v.  Clay,  R.  M.  Charlt. 

Sc.  724.  7. 

2  Can-  V.  Gale,  1  Curt.  384.  *  Rogers  v.  Huie,  1  Cal.  429. 

3  Thompson  v.  Williams.  7  S.  &  ^  ciark  v.  Carter,  13  Geo.  500. 
M.  370;    Burr  v.  Palmer,  23   Vt.  s  Case  v.  The  State,  5  Ind.  1. 


(a)  The  affidavits  should  set  forth  particularly  the  facts  expected  to 
be  proved  by  the  absent  witnesses  on  the  new  trial ;  and  the  affidavits  of 
the  witnesses  should  be  procured  also,  if  practicable,  stating  what  they 
will  testify  to.  The  same  rules  apply,  where  a  new  trial  is  asked  on  the 
ground  of  newly-discovered  evidence.     Rogers  v.  Huie,  1  Cal.  429. 


100  THE    LAW    OF   NEW    TRIALS.  [CH.  VI. 

May,  1S41,  a  trial  had,  and  judgment  entered  against 
tliem  all  in  November,  1843,  and  there  was  nothing  on 
the  record  showing  the  verdict  and  judgment  to  be  in- 
correct. One  of  the  defendants  filed  an  athdavit  as  the 
foundation  of  a  motion  for  a  new  trial,  stating,  that,  on 
the  day  before  the  trial  it  was  agreed  between  the  plaiutiif 
and  himself,  that  the  case  should  not  be  tried  until  they 
had  made  an  effort  to  compromise  it,  and  he,  relying  on 
that  agreement,  went  home,  and  returned  the  next  day, 
and  found  the  case  in  progress  of  trial  before  the  jury; 
and  that  the  disposition  manifested  to  compromise  the 
suit,  and  the  agreement  to  let  the  case  stand,  prevented 
him  from  asking  leave  of  the  court  to  put  in  a  defence 
which  had  arisen  since  the  commencement  of  the  suit, 
namely,  his  discharge  under  the  bankrupt  law.  Held,  the 
defence  went  merely  to  the  defendant's  personal  discharge, 
and  not  to  the  merits  of  the  action;  that  he  had  more- 
over been  guilty  of  negligence  in  not  making  application 
to  put  in  his  defence  at  the  first  tprm  after  his  discharge 
occurred,  for  which  no  excuse  was  offered;  and  the  motion 
for  a  new  trial  was  overruled.^ 

§  25.  An  excuse,  which  would  have  been  a  good  reason 
for  a  continuance,  is  not  necessarily  a  good  reason  for  a 
new  trial.2  Nor  want  of  recollection  of  a  fact,  which,  by 
due  attention,  might  have  been  remembered.^  Nor  that 
the  party  managing  the  cause  was  not  present  when  the 
verdict  was  rendered,  and  the  court  adjourned  the  next 
day."  Nor  that  a  party  neglected  to  defend,  supposing 
his  case  could  not  bo  reached  during  his  absence.^  So, 
where  a  plaintiff",  with  full  knowledge  of  his  right  to 
delay  trial  till  an  absent  defendant   should  be  served, 

'  Thompson  r.  AVilliams,  7  S.  &  «  Paul  v.  Williams,  2  B.  Moiir. 

M.  270.  26'5. 

2  Strippelmann «. Clark,  11  Tex.  ^  Yelton  v.  Ilawkms,  2  J.  J. 
296.  Marsh.  G42. 

3  Watts  V.  Johnson,  4  Tex.  315; 
Cochrane  c.  Middletou,  13  ib.  275. 


CH.  VI.]  WAIVER.  101 

agreed  without  reservation,  that  the  issue  between  him 
and  the  other  defendants  shoiikl  be  set  for  trial  at  a  par- 
ticuhar  day,  then  asked  for  a  continuance  only  on  the 
ground  of  absence  of  his  witnesses,  and,  in  consideration 
of  such  continuance  by  consent,  agreed  of  record  that  the 
case  should  be  tried  on  a  certain  day ;  held,  such  agree- 
ments are  not  only  between  the  parties,  but  between  them 
and  the  court,  and  he  thereby  w^aived  his  right  to  delay 
the  trial  till  issue  should  be  joined  "with  the  absent  de- 
fendant.* 

§  26.  Although  a  person  indicted  for  a  capital  offence 
is  entitled  to  a  copy  of  the  indictment,  he  may  waive 
that  right;  and,  if  he  go  to  trial  without  objecting  to  the 
want  of  such  copy,  he  cannot  object  after  trial.^ 

§  27.  It  is  no  ground  for  a  new  trial  of  a  scire  facias 
against  bail,  that  the  defendant  "believed,  supposed,  and 
was  informed  that  he  had  fully  and  legally  discharged 
himself  as  bail,"  when  he  had  omitted  to  do  all  that  was 
necessary  by  law  for  a  discharge.^  So,  in  a  capital  case, 
the  prisoner,  before  arraignment,  in  reply  to  the  question 
whether  he  had  received  the  copy  of  the  indictment  pro- 
vided by  statute,  replied  that  he  had.  Held,  no  ground 
of  new  trial,  that  the  copy  was  slightly  defective  in  form.* 

§  28.  Upon  a  libel  for  divorce  for  cruelty,  the  respondent 
cannot  except  to  the  refusal  of  the  presiding  judge  to 
order  further  specifications  of  the  places  of  the  acts 
charged  with  the  usual  precision :  especially  when  ac- 
companied by  the  intimation,  that  he  should  be  allowed 
a  reasonable  postponement  to  meet  any  unexpected  evi- 
dence; and  when  he  does  not  during  the  trial  ask  for  any 
such  postponement.^ 

1  Meager  o.  Gagliardo,  35  Cal.        "  U.  S.  v.  Cornell,  2  Mas.  91. 
603.  5  Gardner  v.  Gardner,  2  Gray, 

2  Lisle  V.  The  State,  6  ]Mis.  426.      434. 
«  Howard  v.  Caprou,  3  R.  1. 182. 


102  THE    LAW    OF    NEW    TRIALS.  [CH.  VI. 

§  29.  The  same  rule  ap})lies  to  the  case  of  newly-disco- 
vered evidence}  As  where  by  due  diligence  it  might  have 
been  discovered,  that  a  witness,  who  had  been  examined 
on  his  voir  dire^  and  had  testified  that  he  had  no  interest, 
was  securit}^  for  the  costs.^  And,  on  the  other  hand,  ob- 
jections to  the  sufficiency  of  newly-discovered  evidence, 
to  the  affidavits  filed  in  sup[)ort  thereof,  and  to  the  sufii- 
ciency  of  the  averment  of  the  petition,  must  be  taken 
upon  the  hearing  bclow.^ 

§  30.  If  a  new  trial  is  refused  for  excessive  damages^  a 
1)111  of  exceptions  to  such  refusal  should  state  that  the 
objection  was  taken  in  the  motion.'  And  a  new  trial  will 
not  be  decreed  where  the  defence  could  only  go  in  miti- 
gation of  damages,  if  negligence  on  the  part  of  the  appli- 
cant is  shown.^  So  the  court  above  refused  a  new  trial, 
where  the  evidence  was  that  the  property  was  worth 
"about  $20,"  and  the  verdict  was  for  $21,  no  objection 
being  taken  in  the  court  below.^  And  an  objection  that 
the  damages  are  excessive  is  waived  if  not  insisted  on  as 
a  ground  for  a  ncAV  trial.^ 

§  31.  The  same  rule  applies  to  many  other  miscellane- 
ous cases.  As  in  case  of  neglect  to  instruct  counsel.^  Or 
neglect  to  move  for  a  continuance.''  Or  where  the  party 
mifrht  have  claimed  a  continuance  or  nonsuit  for  want  of 
evidence.^"  So  the  pleading  is  not  open  on  exception,  un- 
less objected  to  at  the  trial. ^'(«)     Thus,  where  a  complaint 

•  Parker  v.  Chambers,  24  Goo.        ^  Roots  v.  Brown,  1  Bibb,  354. 
518;  Border  i\  Spalding,  13  La.  An.         "  Wriiilit  v.  Bonta,  1!)  Tox.  385. 
580  ;  llarri'll   r.  Hill,  15  Tox.  2'M) ;        '  C'rnnip  v.  Starko,  23  Ark.  131. 
MoComhs  V.  Chandlor,  5  Ilarring.         «  Claussen  «.  Salinas,   12  Rich. 
423.  ■  124. 

2  ChiapcUa  v.  IJrown,  14  La.  An.  ^  Borry  v.  Matzlor,  7  Cal.  418. 
189.  '°  Kilnoro  t).  .Jordan,  17  Tex.  341. 

3  Darrance  v.  Preston,  18  Iowa,  "  Wall  «.Provideut,&c.,  3  Allen, 
396.  90. 

*  Law  V.  Law,  2  Gratt.  3G0. 


(a)  Where  the  plaintiff  was  bonnd  to  support  the  affirmative  of  an 
issue  made  by  the  pleadings,  and  the  judge  wrongly  instructed  the  jury 


CII.  VI.]  WAIVER.  103 

under  the  bastardy  act  is  brought  to  the  court  above  on 
other  grounds,  an  objection  cannot  be  there  made  for  the 
first  time  to  the  form  of  complaint.^  And  where  the  court 
is  called  upon  to  instruct  the  jury  as  to  the  law  arising  on 
the  facts,  this  impliedly  assumes  the  correctness  of  the 
pleadings.^  So  the  objection,  tliat  there  is  no  replication 
to  a  special  plea,  cannot  be  taken  on  error,  if  it  was  not 
taken  at  tlie  trial.^  ISTor  can  objection  be  made  to  an 
amendment,  by  striking  out  the  name  of  one  defendant 
without  actually  erasing  it,  unless  made  on  this  ground 
at  the  trial.^  N^or  for  want  of  jurisdiction  of  the  court 
on  account  of  an  insufficient  service,  after  appearance  and 
pleading  to  the  merits.*  So  points  of  law,  not  made  in 
the  original  argument  of  a  case,  will  not  be  noticed  on  an 
application  for  a  rehearing,  where  justice  does  not  require 
it.^  The  same  rule  applies,  where  the  defendants  were 
in  court  on  the  argument  of  a  rule  for  a  new  trial,  and, 
though  called  on  to  support  the  ground  taken  by  affidavit, 
declined  to  do  so.^  So  a  motion  was  made,  for  a  party  to 
show  cause  why  he  should  not  pay  over  certain  money 
derived  from  the  sale  of  one  vessel,  and  afterwards,  on  a 
hearing  of  the  motion,  it  was  agreed  to  include  the  case 
of  another  vessel,  and  judgment  was  rendered  against  him 
in  both  cases.  Held,  the  parties  had  a  right  to  include  by 
agreement  other  matters  than  those  for  which  the  motion 
was  first  made,  and  there  was  no  ground  for  granting  a 


•  Murpliy  V.  Spence,  9  Gray,  399.  ^  Lawrence  v.  Bassett,  5  Allen, 

2  Guy  B.'Taras,  6  Gill,  82.  140. 

3  Hubbert  v.  Collier,  G  Ala.  2G9.  ^  Garland  v.  Holmes,  1  La.  An. 

*  Hawkes  v.  Davenport,  5  Allen,  405.  See  Couch  v.  McKee,  1  Eug. 
390.  See Haynes W.Morgan,  3  Mass.  484;  Cami)bell  n.  Hawkins,  ili.  441 ; 
208  ;  Pease  v.  Wliitnev,  4  ib.  507 ;  Clark  v.  Bank  of  Mississippi,  3  ib. 
Balcom  v.  Woodruff,  7  Barb.  13.  220. 

7  Clark  V.  Blount,  3  Hawks,  208. 

that  the  evidence  offered  by  him  was  sufficient  for  that  purpose,  and  all 
this  appeared  upon  the  record ;  held,  the  court  above  would  notice  the 
error,  although  no  specific  exception  was  taken  on  the  trial.  Grist  v. 
Backhouse,  4  Dcv.  &  Batt.  362. 


104  THE    LAW    OF    NEW    TRIALS.  [ClI.  VI. 

new  trial.'  So  exceptions  are  waived  by  the  acceptance 
of  an  order  granting  a  new  trial,  on  motion,  though  the 
order  leaves  open  only  one  question.-  So,  after  arguing  a 
motion  for  a  new  trial,  it  is  not  admissible  to  object  that 
the  statement  was  not  agreed  to  by  the  party  and  not  set- 
tled by  the  judge.^  So,  although  after  final  judgment  or 
the  overruling  of  an  application  for  a  new  trial  it  is  irre- 
gular to  entertain  a  second  motion  for  that  object ;  yet, 
after  the  court  has  granted  such  new  trial,  the  plaintiff, 
by  appearing  and  amending  his  declaration,  will  be  held 
to  have  waived  the  irregularity.'*  So,  where  the  exclusion 
of  testimony  is  assigned  for  error,  the  bill  of  exceptions 
must  show  that  the  opinion  of  the  court  was  excepted  to 
at  the  time  it  was  given.^  So,  where  exceptions  to  an 
order  accepting  an  award  have  been  overruled ;  the  party 
excepting  cannot  renew  the  motion  to  set  aside  the  aw' ard, 
and  to  support  it  by  new  evidence.  "  He  cannot  try  his 
case  piecemeal."*  So  there  is  a  waiver,  unless  the  defend- 
ant objects,  by  demurrer,  or  at  the  trial,  to  the  plaintiff's 
capacity  to  sue,  or  to  the  jurisdiction.^  So  an  objection 
to  the  revival  of  a  suit  in  the  name  of  an  administrator 
cannot  be  made  on  error,  unless  made  in  the  court  below.^ 
So  equity  will  not  order  a  new  trial,  if  there  has  been 
want  of  diligence  at  law.^  So  an  objection  to  the  non- 
joinder of  defendants  is  waived,  when  not  taken  by  the 
pleadings.!"  So  under  (Miss.)  Rev.  Code,  504,  §§  IGl,  2,  6, 
the  Supreme  Court  cannot  consider  any  other  objections 
to  the  proceedings,  trial  and  verdict  than  those  stated  in 
the  motion  for  a  new  trial.'^  So  the  filing  of  a  brief  of 
evidence,  on  a  motion  for  a  new  trial,  is  waived  by  the 
opposite  party's  appearance  and  argument  of  the  motion. '^ 

'  Bates  V.  The  Republic,  2  Tex.        e  Fay  v.  Bond,  8  Allen,  433-4. 
616.  '  Mosselman».Caen,  34Barb.  06. 

2  Seccorab  v.  Provincial,  &c.,  4        *  Patterson  y. Burnett.  0  Ala.  844. 
Allen,  102.  s  Hamilton  y.  Moore,  32  Miss.  625. 

•''  Dickinson  v.  Vanliorn,  9  Cal.        ">  McV(>an  v.  8cott,  40  Barb.  379. 
207.  "  Barney  v.  Scherling,  40  Miss. 

*  Powers  V.  Bridges,  1  Iowa,  235.  320. 

^  Deloacli   v.    Walker,   7  Miss.       '^  Goodwyn  v.  Hightower,  30  Ga. 

164.  •  249. 


en.  VI.]  WAIVER.  105 

So,  when  a  demurrer  is  filed  to  an  answer,  and  has  not 
been  disposed  of  when  the  case  is  tried,  hut  no  ohjection 
is  made  on  that  account  at  the  time  of  trial ;  a  new  trial 
will  not  be  granted  on  account  of  the  irregularity.*  l^or, 
after  verdict,  where  the  defendant,  without  objection,  per- 
mits the  plaintiff's  counsel  to  draw  inferences  from  facts 
in  the  case,  which  lie  deems  unjust  and  unfair,  or  to 
indulge  in  a  course  of  argument  calculated,  in  the  de- 
fendant's opinion,  to  improperly  influence,  prejudice,  or 
mislead  the  jury.^  So  a  party  who  goes  to  trial  before 
the  judge  alone,  without  objection,  waives  a  jury.' 

§  32.  The  same  rule  has  been  applied  to  an  irregular 
course  of  proceeding  on  the  part  of  the  objecting  party 
himself.  It  is  said:  "It  is  not  for  a  party  to  comj^lain 
that  the  j^ersonal  knowledge  of  jurors  was  ai^pealed  to  by 
himself  unsuccessfully.  Having  chosen  to  adopt,  and 
been  permitted  without  objection  to  pursue,  an  unusual 
course  of  argument,  and  having  therein  ventured  to  rely 
upon  a  species  of  evidence  usually  regarded  as  loose,  un- 
certain, and  dangerous  in  its  character,  he  cannot  take 
advantage  of  his  own  act,  and  avoid  a  verdict  against 
himself  on  account  of  his  own  conduct  in  the  manage- 
ment of  his  cause."'* 

§  33.  The  negligence  of  counsel  has  the  same  effect  as 
that  of  the  party  himself.^  Thus,  where,  at  the  trial  of  an 
action  against  an  insurance  company,  it  appeared  that  the 
sheriff,  who  had  returned  a  talesman  to  serve  on  the  jury, 
was  a  stockholder  in  such  company,  and  this  circumstance 
was  known  to  the  junior  counsel  for  the  plaintiff  soon 
after  the  trial  began,  but  no  objection  was  made  till  after 

1  Caldcrwood  v.  Tevis,  23  Cal.  ^  Yates  v.  Monroe,  IR  111.  213  ; 
335.  Green  v.  Robinson,  3  How.  Miss. 

2  Ames  V.  Potter,  7  R.  I.  2C)5.  105;  Patterson  «.  Matthews,  3  Bibb, 

3  Leonard  r.  Rogan,  20  Wis.  540.  80. 
*  Per  Fowler.  J.,  Nuttiug  v.  Her- 
bert, 37  N.  H.  35-4. 


106  THE    LAW    OF    NEW    TRIALS.  [CII.  VI. 

the  trial  had  proceeded  lor  some  time;  held,  a  waiver  of 
any  exception  to  the  competency  of  such  juror.*  So  the 
interest  of  a  juror,  if  known  to  counsel  hefore  the  trial, 
though  not  known  to  his  client  until  after  verdict,  is  no 
ground  for  a  new  trial. -(a) 

'  Orrok  v.  CommomvcaUh  Ins.  2  Kent  v.  Cli;irlestowu,  3  Gray, 
Co.,  21  Pick.  406.  281. 

(a)  Where  no  writ  issued  against  a  defendant,  it  is  no  ground  for  a 
new  trial,  if  he,  by  his  attorney,  defended  the  cause.  Ilaiidley  v.  State- 
lor,  6  Litt.  186.  And  a  new  trial  will  not  be  granted,  because  the  at- 
torney of  the  party  moving  was  absent  from  llie  trial.  l)eing  mistaken  as 
to  the  time  of  the  meeting  of  the  court.  Stcigers  r.  Darljy,  8  Miss.  679; 
Field  V.  Matson,  8  Mis.  686.  So,  where  a  defendant,  from  tlie  beginning, 
neglects  his  case  on  very  insufficient  grounds,  whereby  a  default  is  ren- 
dered against  him,  and  afterwards  employs  counsel  who  does  not  prac- 
tise in  the  court;  he  is  not  entitled  to  any  indulgence  of  the  court,  and 
cannot  claim  any  because  of  the  absence  of  his  counsel.  Cogdell  v.  Bar- 
field,  2  Hawks,  3.32. 

The  principle  of  waiver  hy  neglect  is  applied,  in  reference  to  the  time 
at  or  within  which  the  application  for  a  new  trial  shall  be  made.  The 
cases  relating  to  this  point  of  course  depend  upon  the  varying  statutes 
and  course  of  prS,ctice  in  the  different  States. 

In  Alabama,  where  the  counsel  for  both  parties  agree  that  an  excep- 
tion, taken  at  the  trial  shall  be  examined  after  the  adjournment  of  the 
court,  and  the  bill  of  exceptions  then  .scaled  and  allowed ;  this  is  not  a 
failure  or  refusal  of  the  judge,  within  the  Alabama  act  of  1826,  so  as 
to  warrant  the  Supreme  Court  to  allow  the  exceptions.  Wood  v.  Brown, 
8  Ala.  742.  In  the  same  State,  an  act  which  provides,  that  it  shall  not  be 
lawful  forjudges  "to  sign  bills  of  exception  after  the  adjournment  of  the 
court,  unless,  by  counsel's  consent  in  writing,  a  longer  time,  not  beyond 
ten  days,  is  given  ;"  is  mandatory  in  its  terms,  and  intended  to  provide 
for  an  evil,  which  requires  that  it  should  be  interpreted  according  to  the 
import  of  the  language  employed  ;  consequently  such  a  consent  must  be 
in  writing.  AVood  v.  Brown,  8  Ala.  563.  In  Georgia,  a  bill  of  excep- 
tions must  be  drawn  up,  certified,  and  signed,  within  four  days  after  the 
trial.  Truluck  v.  Peeples,  1  Kelly,  1.  And  if  not  thus  signed,  will  be 
dismissed.  Smith  v.  Burn,  2  Kelly,  262.  But  when  there  is  no  evidence 
as  to  the  time,  the  court  will  presume  that  it  was  signed  within  the 
proper  time.  Truluck  v.  Peoples,  1  Kelly,  1.  Where,  on  motion  for  a 
rule  nisi  for  a  new  trial,  the  brief  of  evidence  had  been  agreed  on  by 


en.  VI.]  WAIVER.  107 

counsel,  and  approved  liy  the  court,  and  ordered  to  be  entered  on  the 
minutes  of  tlie  court;  but,  owing  to  the  sickness  or  fault  of  the  clerk, 
was  not  entered:  on  a  motion  to  dismiss  the  rule  it  was  held,  that,  as  the 
65th  common-law  rule  had  been  substantially  complied  with,  an  order  for 
the  entry  of  the  brief  might  be  taken  nitnc  pro  tunc.  Dunn  v.  Crozier, 
17  Geo.  70.  Where  a  party  tenders  a  bill  of  exceptions  to  the  opinion 
of  the  Superior  Court,  within  the  thirty  days  prescribed  by  law,  it  is  the 
duty  of  the  presiding  judge  to  certify  and  sign  it,  if  true,  though  there 
was  no  notice  of  a  purpose  to  except  at  the  time.  Carey  v.  McDougald, 
4  Geo.  609.  In  Massachusetts,  exceptions  to  instructions  to  the  jury 
may  be  first  alleged  after  the  verdict.  Buckland  v.  Charlemont,  3  Pick. 
173.  Exceptions  must  be  taken  before  the  adjournment  of  the  court 
below;  but  the  Supreme  Court  will  not  notice  an  irregularity  in  this 
respect,  unless  it  appears  by  the  certificate  of  the  judge  who  allows  the 
exceptions.  Whitcomb  v.  Williams,  4  Pick.  288.  In  general,  a  party 
cannot  except  to  an  interlocutory  order,  until  final  judgment.  Piper  v. 
Willard,  6  Pick.  461.  If  he  do  except  before  final  judgment,  and  still 
wish  the  action  tried,  he  must  enter  the  exceptions  in  the  Supreme  Court, 
where  they  will  be  dismissed,  and  the  action  may  be  brought  forward  on 
the  docket  of  the  court  below.  Ely  v.  Ball,  8  Pick.  3.52.  It  is  the  duty 
of  this  court  so  to  bring  forward  a  case,  and  proceed  to  judgment,  when 
the  Supreme  Court  refuse  to  take  cognizance  of  exceptions;  and,  on 
certiorari,  it  will  be  presumed  that  the  case  was  not  brought  forward 
without  notice  to  the  party  who  took  the  exceptions.  Com.  v.  Moore,  3 
Pick.  194.  In  Vermont,  exceptions  to  an  interlocutory  judgment  of  the 
Court  of  Common  Pleas  must  be  allowed  and  filed  when  such  judgment 
is  rendered.  Gage  v.  Ladd  6  Yerm.  174.  Where  a  judgment  is  ren- 
dered by  a  county  court,  under  a  rule  that  such  judgment  is  to  be  re- 
versed by  the  Supreme  Court,  in  a  certain  event;  such  rule,  though 
binding  upon  the  parties,  is  not  necessarily  imperative  upon  the  court ; 
and  where  the  case  turns  upon  a  point  not  anticipated  when  the  rule  was 
made,  and  in  the  opinion  of  the  court  requires  the  further  action  of  a  jury, 
it  will  be  remanded  for  a  new  trial.  Foster  v.  Callamer,  10  Verm.  466. 
In  Iowa,  Avhen,  by  agreement,  twt  ty  days  were  granted  a  party  to  pre- 
pare a  bill  of  exceptions,  and  within  that  time  he  presented  the  bill  to 
the  judge  for  his  signature,  though  it  was  not  filed  with  the  clerk  till  five 
days  after,  it  was  held  to  be  sufficient.  Humphrey  v.  Burge,  1  Iowa,  223. 
A  defendant  having  appealed  from  a  judgment  by  default,  on  the  ground 
that  he  was  served  with  notice  by  publication  only,  the  judgment  was 
affirmed,  because  no  motion  had  been  made  for  a  retrial,  as  provided  by 
Rev.  1860,  §  3160.  Held,  the  defendant  was  not  precluded  thereby 
from  making  such  motion  within  the  time  prescribed  by  the  statute. 
Berryhill  v.  Jacobs,  20  Iowa,  246.  A  court  has  jurisdiction  of  a  petition 
for  a  new  trial,  filed  by  the  plaintiff  at  a  term  subsequent  to  that  in 


108  THE   LAW    OF   NEW    TRIALS.  [CII.  VI. 

which  the  original  judgment  was  entered,  which  was  in  his  favor,  but  for 
a  very  small  sum,  when  the  real  estate  of  the  defendant,  a  non-resident 
of  the  State,  was  attached  at  the  commencement  of  the  suit,  and  he  ap- 
peared and  answered,  and  when  notice  by  publication  of  the  petition  has 
been  given,  and  notice  left  at  his  usual  place  of  residence.  Darrance  v. 
Preston,  18  Iowa,  396.  On  an  application  for  a  new  trial  in  an  action 
for  the  recovery  of  real  property,  the  court,  under  Rev.  3584,  is  not 
limited  to  the  grounds  specified  in  §§  3112-3120.  White  v.  Poormau,  24 
Iowa,  108.  In  such  actions  the  right  to  apply  for  a  new  trial  is  not 
limited  to  the  party  to  the  suit.  lb.  The  applicant  has  two  years  in 
which  to  make  his  application.  lb.  Where,  on  appeal,  a  cause  in  eject- 
ment is  remanded,  and  judgment  entered  in  the  District  Court  for  the 
plaintiff,  it  is  the  same  as  if  such  judgment  had  been  entered  there  and 
DO  appeal  had  been  taken,  and  under  H  3582-3588  of  the  Revision  the 
unsuccessful  party  has  the  riglit  to  apply  to  the  District  Court  for  a  new 
trial  within  two  years  from  the  judgment.  Butterfield  r.  Walsh.  25  Iowa, 
263.  Under  ^§  3582-3588  of  the  Revision,  the  unsuccessful  party  in  an 
action  of  right  is  entitled  to  the  benefit  of  the  provisions  respecting  new 
trials  as  well  where  his  defence  is  equitable  as  where  it  is  legal.  .lb.  In 
New  York,  the  bill  must  be  presented  to  the  judges  of  the  Court  of 
Common  Pleas,  and  must  be  signed  and  sealed  by  them,  while  sitting  to- 
gether as  a  court.  Clark  v.  Dutcher,  19  Johns.  246  ;  Midbcrry  v.  Collins, 
9  Johns.  345.  If,  however,  a  copy  has  been  served  on  the  opposite  party, 
and  produced  in  court,  and  no  objection  taken  to  the  judges'  signing  it, 
except  that  it  was  not  seasonably  presented ;  they  may  sign  the  bill 
separately.  People  v.  Herkimer,  C.  P.,  7  Wend.  536.  If  there  be  an 
order  to  stay  proceedings  till  exceptions  are  settled,  the  party  excepting 
shall  have  reasonable  time,  after  attending  before  the  judge  for  settle- 
ment, to  engross  the  bill,  and  obtain  the  judge's  signature ;  and,  till  his 
signature  is  obtained,  the  bill  is  not  settled,  and  a  judgment  entered  pre- 
viously thereto  will  be  set  aside  for  irregularity.  Pellatreau  v.  Moore,  9 
Wend.  493.  Where  a  bill  has  been  taken,  but  not  entered  on  the  roll, 
nor  filed,  nor  attached  to  the  record,  the  court,  even  after  the  lapse  of 
several  years,  will  order  it  to  be  so  filed  and  attached,  to  enal)le  the  party 
to  bring  error.  Manhattan  Co.  v.  Osgood,  1  Cow.  65.  A  defendant  in 
error  cannot  take  advantage  of  the  fact  that  a  bill  purports  to  have  been 
signed  subsequent  to  the  trial ;  for  the  court  will  permit  the  bill  to  be 
amended.  A  bill  improperly  allowed  or  wrongly  dated  will  be  set  aside 
on  a  special  motion.  Dean  v,  Cridlcy,  10  Wend.  254.  It  is  too  late  to 
make  a  motion  for  a  new  trial  after  entry  of  judgment.  Sheldon  v_ 
Stryker,  42  Barb.  284.  In  Kentucky,  reasonable  time  should  be  given 
to  prepare  exceptions,  and  for  the  court  to  consider  on  them ;  and,  when 
a  case  is  tried  at  the  last  hour  of  the  term,  time  may  properly  be  given 
until  the  next  terra.     Gordon  v.  Ryan,  1  J.  J.  Marsh.  58.     The  court  is 


CH.  VI.]  WAIVER.  109 

not  bound,  in  all  cases,  to  allow  exceptions,  after  the  trial  is  closed,  to 
opinions  given  in  the  course  of  the  trial.  Halloway  v.  ITalloway,  1  Monr. 
131.  The  exceptions  should  regularly  be  made,  while  the  transactions  to 
which  they  refer  are  proceeding.  Hughes  v.  Robinson,  1  Monr.  216. 
They  should  be  prepared  and  finished  before  the  close  of  the  trial. 
Hawkins  v.  Lowry,  6  J.  J.  Marsh.  247.  The  application  for  a  new  trial 
must  be  made  at  the  term  the  verdict  or  decision  is  rendered,  and,  except 
for  the  cause  mentioned  in  subdivision  7  of  §  369  of  the  Civil  Code,  shall 
be  within  three  days  after  the  verdict  or  decision  was  rendered,  unless 
unavoidably  prevented.  Harris  v.  Eay,  15  B.  Mon.  028.  In  Tennessee, 
though  a  judge  certify  that  the  facts  set  forth  (in  a  paper  intended  for  a 
bill  of  exceptions)  are  true,  yet,  if  he  state  that  it  was  not  offered  "while 
the  thing  was  transacting,"  and  do  not  put  his  seal  to  it,  it  will  not  be 
regarded  as  a  part  of  the  record,  nor  be  noticed  in  any  way  by  the  court 
above.  Powers  v.  Wright,  Minor,  66.  In  Texas,  in  an  application  for 
a  new  trial  after  the  adjournment  of  the  court,  the  applicant  must  show 
that  injustice  has  been  done  by  the  verdict  and  judgment  at  law,  and  why 
he  did  not  make  his  defence  on  the  trial  of  the  action.  Spencer  v.  Kin- 
nard,  12  Tex.  180.  To  entitle  a  party  to  a  new  trial  after  the  term,  he 
must  shoV  sufficient  matter  to  have  entitled  him  to  a  new  trial  if  applied 
for  in  the  term,  and  a  sufficient  legal  excuse  for  not  having  then  made 
his  application.  Cook  v.  Garza,  13  Tex.  431.  It  is  competent  for  the 
District  Court,  in  the  exercise  of  equity  jurisdiction,  to  grant  a  new  trial 
after  the  adjournment  of  the  court  at  which  it  should  have  been  asked. 
Gorman  v  McFarlaud,  13  Tex.  237.  Where  a  new  trial  was  granted  on 
condition  that  the  plaintiff  pay  costs  on  or  before  the  next  term,  if  the 
defendant  intends  to  insist  upon  the  nullity  of  the  order,  he  must  do  it 
at  the  next  term.  lb.  A  court,  after  granting  a  new  trial,  cannot  rescind 
the  order  and  enter  judgment  on  the  verdict  at  a  subsequent  term.  Wells 
V.  Melville,  25  Tex.  337  ;  Brooks  v.  Hanauer,  22  Ark.  174.  In  Yir- 
ginia,  a  party  wishing  to  move  for  a  new  trial  at  law  is  not  bound  to  do 
so  on  the  day  of  the  trial,  but  may  do  it  ou  a  subsequent  day  of  the 
term.  Foushee  v.  Lea,  4  Call,  279.  In  Mississippi,  instructions  which 
appear  by  the  record,  as  made  under  the  practice  of  the  State,  to  have  been 
given  or  refused,  are  open  for  consideration  upon  a  motion  for  a  new  trial, 
although  not  specially  excepted  to  at  the  trial  below.  Mayer  v.  Mc- 
Lure,  36  Miss.  389.  A  bill  of  exceptions  to  the  ruling  of  the  court  at  the 
trial,  sealed  at  the  term  subsequent  to  the  term  of  the  trial,  though  the 
exceptions  were  taken  at  the  time,  is  incompetent.  Gray  v.  Thomas,  12 
S.  &  M.  111.  Where,  upon  an  application  to  the  Circuit  Court  for  a 
mandamus,  to  compel  a  board  of  police  to  sign  a  bill  of  exceptions,  with 
the  view  of  taking  up  a  case  by  appeal  to  that  court,  the  defendants 
answered,  that  no  appeal  had  been  prayed  by  the  party  seeking  the 
mandamus,  either  at  the  term  when  the  judgment  was  rendered  from 


110  THE    LAW    OF   NEW    TRIALS.  [CIL  VI. 

wliieli   llio   iippoal  was  souulit,  or  the  next  succeeding  one,  anil  on  this 
answer  the  plaintifl"  moved  for  a  peremptory  ??ia?u/«»i»s;  it  was  held, 
that  this  motion  admitted  tlic-truth  of  the  answer,  which  showed  that  the 
application  for  an  apjieal  was  made  too  late,  the  law  requiring  it  at  the 
judgment  term  or  succeeding  one,  *'  and  not  after."     Board  of  Police  v. 
Ray,  12  S.  &  M.  342.     In  Arkansas,  when  the  court  gave  the  plaintiff 
"  until  the  .5th  of  July"  to  tender  a  bill  of  exceptions,  and  it  was  pre- 
sented, signed,  sealed,  and  ordered  to  be  made  part  of  the  record,  on  the 
r)tli  of  July ;  held,  it  was  within  the  time  allowed.     Thorn  v.  Delaney,  1 
Eng.  219.     Where  the  transcript  showed  an  entry  of  the  trial  and  judg- 
ment on  the  28th,  and  a  similar  entry  dated  the  30th  of  July,  and  the 
judge  certified,  in  the  bill  of  exceptions,  that  the  trial  was  had  on  the 
30th;  held,  the  trial  and  judgment  must  be  considered  as  having  taken 
place  on  the  30th,  and  the  entry  of  the  28th  as  being  a  clerical  error;  or 
the  first  judgment  as  having  been  set  aside,  and  a  new  trial  granted  on 
the  30th.     lb.     AVhere  an  appeal  is  asked  from  a  decision  of  a  probate 
court,  the  party  has,  during  that  term,  to  present  his  bill  of  exceptions 
for  allowance.      Dillard   v.  Moore,  2  Eng.  16G.     In  Illinois,  in  appeal 
cases  where  the  judge  tries  the  facts,  a  bill  is  in  season  after  the  judgment 
is  rendered.    Johnson  v.  Ackless,  1  Brcese,  59.     In  Connecticut,  the 
court  will  not  reject  a  bill  of  exceptions  to  a  judge's  charge,  merely  be- 
cause it  was  not  filed  till  after  the  verdict ;  no  specific  time  being  fixed 
by  law.     Camp  v.  Tompkins,  9  Conn.  .545.     In  Delaware,  a  new  trial 
must  be  demanded,  but  need  not  be  had,  within  fifteen  days  after  the 
judgment.     Deputy  v.  Betts,  4  Harring.  352.     In  the  Supreme  Court  of 
the  United  States,  the  bill  must  appear  on  its  face  to  be  taken  and  signed 
at  the  trial,  though  in  practice  it  may  be  signed  afterwards,  when  re- 
duced to  form  ;  but,  if  it  be  afterwards  signed,  it  must  be  nunc  pro  tunc; 
and  if  it  appear  otherwise  it  is  a  fatal  defect.     Walton  v.  The  United 
States,  9  AVheat.  651;  Law  v.  IMerrils,  G  Wend.  2G8.     See  2  Sumn.  19. 
In  England,  where  a  party  has  obtained  a  rule  nitii  for  a  new  trial,  by 
leave  of  the  court,  after  the  expiration  of  the  first  four  days  of  the  term, 
but  without  giving  notice  within  that  period  to  the  opposite  party  of  his 
intention  to  move,  and  the  opposite  party  has  signed  judgment  without 
any  notice  of  the  motion;  the  court  will  not  permit  the  rule  to  be  made 
absolute,  if  the  objection  is  nuule  on  showing  cause.     AVhitly  v.  Carr,  2 
Eng.  Law  and  Ya[.  1G7.     See  Mossop  v.  Great  Northern  Railway  Co.,  32 
Eng.  Law  and  Eq.  380.     A  plaintiff  is  entitled  to  the  same  time  for  pro- 
ceeding to  trial,  after  a  rule  made  absolute  for  a  new  trial,  as  he  had  for 
proceeding  to  trial  originally.     Consequently,  where  a  rule  had  been 
made  absolute  for  a  new  trial,  and  the  plaintiff  had  gone  down  to  try  at 
the  sittings  after  Michaelmas  term,  but  the  jury,  being  unable  to  agree, 
■were  discharged  from  giving  a  verdict ;  held,  it  was  not  competent  to  the 
defendant  to  take  down  the  record  for  trial  by  proviso  at  the  sittings 


en.  VI.]  AVAIVER.  Ill 

after  Hilary  term,  the  plaintiff  not  being  in  default.  Oakeley  v.  Ooddeen. 
11  C.  B.  (N.  S.)  805.     Where  notice  of  trial  has  been  given  for  a  par- 
ticular sitting,  and  at  the  request  of  the  defendant  the  cause  is  made  a 
remanet  to  a  subsequent  sitting,  a  countermand  of  trial  by  notice  four 
days  before  such  subsequent  sitting  is  sufficient.   Sully  v.  Noble,  1  Hurl. 
&  Colt.  809.     A  rule  for  a  new  trial  having  by  mistake  of  counsel  been 
moved  in  the  Queen's  Bench  instead  of  the  proper  court,  the  court  per 
mitted  the  motion  to  be  renewed  here  after  the  expiration  of  the  four 
days.     Johnson  v.  Warwick,  34  Eng.  Law  and  Eq.  413.     A  cause  was 
tried  before  Lord  Truro,  when  chief  justice  of  the  court,  and  a  bill  of 
exceptions  tendered,  and  the  draft  thereof  submitted  to  his  lordship;  but, 
in  consequence  of  his  elevation  to  the  woolsack,  and  subsequent  illnes.s, 
all  hope  of  getting  it  settled  and  sealed  being  at  an  end,  the  court  di- 
rected a  new  trial.     Benett  v.  Peninsular,  &c.,  Steamboat  Co.,  32  Eng. 
Law  and  Eq.  318.     In  Vermont,  uuder  the  statute,  requiring  a  petition 
for  a  new  trial  to  be  brought  within  two  years  next  after  the  rendition 
of  the  original  judgment,  such  time  is  to  be  reckoned  from  the  last  day 
of  the  term   at  which  judgment   is  rendered.     Bradish  v.  State,  35  Vt. 
452.     Under  the  (Ind.)  Code,  a  new  trial  after  the  term  can  only  be 
granted  for  a  cause  for  which  it  might  have  been  granted  during  the 
term,  had  the  cause  then  been  known.     Glidewell  v.  Daggy,  21  Ind.  95. 
A  motion  for  a  vemre  de  novo  is  not  a  waiver  of  a  motion  for  a  new 
trial.     Jenkins  v.  Parkhill,  25  Ind.  473.     In  California,  when  leave  is 
granted  to  file  a  statement  of  the  grounds  of  a  motion  for  a  new  trial 
within  twenty  days,  the  time  runs  from  the  date  of  the  order,  and  not 
from  the  time  of  giving  notice  of  the  motion.    Easterby  v.  Larco,  24  Cal. 
179.     A  party  who  claims  the  benefit  of  a  waiver  of  the  failure  to  file, 
within  the  proper  time,  the  statement  required  on  an  application  for  a 
new  trial,  must  prove  the  waiver  beyond  question.     Munch  v.  William- 
son, 24  Cal.  167.     A  record  of  court,  viz.:  "Now,  at  this  day,  in  open 
court,  comes  on  to  be  heard  the  defendant's  motion  for  a  new  trial ;  and, 
thereupon,  after  having  heard  the  arguments  of  counsel,  the  court  over- 
rules the  same,  to  which  ruling  of  the  court  the  defendants,  by  counsel, 
except,"  shows  no  appearance  of  the  counsel  of  the  plaintiff,  by  which  he 
can  be  held  to  have  waived  any  objection  to  the  filing  of  the  statement 
of  the  grounds  of  the  motion,  after  the  time  prescribed  by  the  statute 
for  such  filing  had  expired.     lb.     The  right  to  move  for  a  new  trial  is 
waived,  if  the  notice  of  the  motion  is  not  filed  and  served  until  twenty 
days   after  judgment.     Ellsasser  v.  Hunter,  26  Cal.  279.     When   the 
court  orders  that  the  defendant  have  twenty  days  within  which  to  file  a 
statement  on  motion  for  a  new  trial,  it  is  too  late  to  file  such  statement 
on  the  twenty-first  day  after  the  order.     Jenkins  v.  Frink,  27  Cal.  337. 
The  court  has  power,  upon  good  cause  shown,  to  extend  the  time  for 
serving  notice  of  intention  to  move  for  a  new  trial  thirty  days  beyond 


112  THE   LAW    OF   NEW    TRIALS.  [CH.  VI. 

the  time  allowed  by  ?  195  of  the  practice  act.     If  the  time  is  extended, 
the  appellant  has  five  days  from  the  time  when  notice  is  served  to  file  his 
statement,  and  the  court  can  extend  the  time  to  twenty  days  further. 
Harper  v.  Minor,  27  Cal.  107.     The  objection,  that  it  docs  not  appear  in 
the  transcript  when  the  statement  on  motion  for  a  new  trial  was  filed 
below,  must  be  made  before  the  submission  to  the  court  above  on  the 
merits.     Ross  v.  Roadhouse,  3G  Cal.  580.     A  motion  for  a  new  trial  was 
argued  without  the  settlement  of  any  statement,  and  an  order  denying 
the  motion  was  made  August  29. 1865,  more  than  a  year  after  the  motion 
was  submitted,  accompanied  by  an  order  granting  a  stay  of  proceedings 
for  sixty  days,  to  enable  the  plaintiffs  to  prepare  papers  on  appeal.     In 
April,  1867,  the  plaintiffs  moved  to  set  aside  the  order  of  August  29,  and 
to  restore  the  motion.     This  was  granted  in  August,  1867,  and  a  state- 
ment on  motion  for  a  new  trial  was  certified  by  the  judge,  and  ordered 
filed  as  of  that  day ;  the  motion  for  a  new  trial  was  then  denied,  and  an 
appeal  taken.    Held,  the  appeal  must  be  dismissed.    Waggenheim  v. 
Hook,  35  Cal.  216.    In  Missouri,  a  writ  of  error  does  not  lie  from  a  refusal 
to  grant  a  motion  for  a  new  trial,  when  it  was  not  filed  within  the  time 
prescribed  by  statute.     Richmonds  v.  Wardlaw,  36  Mis.  313.     In  Kan- 
sas, where  the  grounds  for  a  motion  for  new  trial  are  irregularity,  and 
accident  or  surprise,  without  proof  applying  that  the  party  had  been 
"  unavoidably  prevented"  from  making  the  motion  before,  it  is  error  to 
hear  and  grant  the  motion  after  three  days  from  judgment.     A  motion, 
for  leave  to  make  a  motion  for  a  new  trial,  is  one  unknown  to  the  law, 
and  a  nullity.     A  motion  for  a  new  trial  upon  the  ground  of  newly-dis- 
covered evidence  must  be  made  at  the  term  in  which  the  judgment  was 
rendered.     Odell  v.  Sargent,  3  Kans.  80.     In  Nevada,  when  no  notice  of 
intention  to  move  for  a  new  trial  is  made  within  two  days  of  the  rendi- 
tion of  judgment,  the  court  by  adjourning  loses  jurisdiction  of  the  case, 
and  has  no  authority  subsequently  to  grant  leave   to  give  the  notice 
nunc  pro  tunc.     An  informal  verbal  notice,  given  out  of  court  in  con- 
versation with  the  opposing  counsel,  is  not  sufficient.     Killip  v.  Empire, 
2  Nev.  34.     In  Wisconsin,  a  motion  upon  the  judge's  minutes  for  a  new 
trial  cannot  be  heard  after  the  term  at  which  the  cause  was  tried.    Pren- 
tiss V.  Danaher,  20  Wis.  311.     Where  a  statute  provided,  that,  when  a 
new  trial  is  ordered  by  the  Supreme  Court,  the  record  shall  be  transmitted 
to  the  court  below,  and  proceedings  be  had  there  within  one  year  from 
such  order ;  held,  the  issuing  of  a  commission  to  take  depositions,  which 
was  returned  with  important  evidence  within  the  year,  was  a  sufficient 
compliance  with  the  statute.     Walsh  v.  Dart,  19  Wis.  433. 


en.  VII.]  NEW    TKIAL   IN   CRIMINAL   CASES. 


118 


CHAPTER  VII. 


NEW  TRIAL  IN  CRIMINAL  CASES. 


1.  General  rule. 

5.  Bill  of  exceptions. 

6.  Whether  there  can  be  a  new 


trial  after  acquittal ;  constitutional 
provisions. 
9.  Or  even  after  conviction. 
10.  Miscellaneous. 


§  1.  In  this  country,  new  trials  may  be  granted  in  cri- 
minal cases,  after  conviction,  for  substantially  the  same 
causes  as  in  civil  actions ;  in  general,  as  is  said,  on  the 
ground  that  the  verdict  is  contrary  to  law  and  the 
evidence.^  The  distinction  between  the  practice  in  the 
United  States  and  that  prevailing  in  England  on  this  sub- 
ject is  thus  stated  in  a  leading  case  in  Massachusetts. 
Subsequent  statutes  have  doubtless  changed  the  law  in 
both  countries.  "In  England,  the  utmost  caution  is  used 
on  capital  trials  in  favor  of  life ;  and  if  an  irregularity 
materially  affecting  the  trial  occurs  to  the  injury  of  the 
accused,  the  court  usually  represents  such  matter  to  the 
crown  ;  and  a  pardon  is  generally  granted.  But  it  is  a 
right  of  every  subject  of  that  country,  and  of  every  citi- 
zen of  this,  to  have  a  fair  and  legal  trial  before  his  peers, 
the  jury ;  and  it  is  hardly  consistent  with  that  right,  that 
it  should  be  left  to  the  will  or  discretion  of  the  judge, 
whether  a  representation  of  an  actual  irregularity  shall 
be  made  to  the  pardoning  power;  or  to  the  discretion  of 


'  TheStatew.Sims,  Dudley,  Geo.  Sneed,  64;   The  State  v.  Simons, 

213;  Grayson  «.  Com.,  OGratt.  712;  Dudlev,    Geo.  27;    Dilby  v.  The 

The  State  v.  Prescott,  7  N.  11.  287.  State,  Riley,  302. 
See  Wattingham  v.  The  State,  5 

8 


114  THE    LAW    OF    NEW    TRIALS.  [CH.  VII. 

tliu  latter,  whotluT  that  power  sliall  1)0  exercised  in  favor 
of  a  person  unknvfully  convicted. '"'((;) 

§  2.  Motions  for  new  trials  are  said  to  be  governed  by 
the  same  rules  in  criminal  as  in  civil  cases  f  and,  in  the 
various  chai)tcr3  of  the  present  work,  it  may  be  seen  that 
both  classes  are  for  the  most  part  indiscriminately  cited. 
But  it  is  also  held,  that,  in  criminal  cases,  the  court  above 
will  award  now  trials,  whenever,  in  its  judg-ment,the  ver- 
dict is  not  warranted  by  proof;  that  the  rule  in  civil  cases 
does  not  apply. ^  And  that  a  new  trial  will  bo  awarded  to 
a  defendant  in  a  criminal  case,  though  it  may  appear  to 
the  court  that  the  verdict  was  correct.^  Though  not 
merely  because  the  jury  may  be  supposed  to  have  mis- 
taken the  laws,  or  may  have  judged  mistakenly  of  the 
weight  of  the  evidence.' 

§  3.  A  new  trial  may  be  granted  in  case  of  conviction 
upon  insufficient  evidence,'^  or  without  any  evidence."  But, 
in  criminal  as  well  as  civil  cases,  a  verdict  will  always 
have  great  weight  with  the  court ;  and  a  new  trial  will 
not  of  course  be  granted  because  the  court  are  not  satis- 
fied beyond  a  reasonable  doubt,  from  the  evidence  in  the 
record,  of  the  guilt  of  the  defendant.^ 

§  4.  A  now^  trial  may  be  had,  in  a  criminal  case,  at  the 
same  term,  where  the  first  jury,  having  been  unable  to 
agree,  were  discharged  by  the  court.^ 

1  Per  Parker,  C.  J.,  Com.  r.  «  Ball's  Case.  8  Leij^li,  726;  Bed- 
Green,  17  Mass.  534.  ford  r.  The  State,  5  liumiih.  502. 

•<■  Grayson  ■».  Com.,  G  Gratt.  712.        "  The  State  i'.  Spenlove,  Riley, 

3  Dains  v.  The  Stale,  2  Humph.  260. 
439.  8  Kirby  i\  The  State,  3  Humph. 

«  Peck  V.  The  State,  2  Humph.  289.     Ace.  The  State  «.  Prescott,  7 

78.  N.  II.  287  ;  Stevens  «.  The  State,  3 

5  Wickersham  v.  The  People,  1  Pike,  66. 
Scam.  130.  ^  The  State  v.  Updike,  4  Harring. 

581. 


(a)  In  England  a  new  trial  cannot  be  granted  on  the  ai)pliealion  of 
the  prisoner,  in  a  case  of  ielouy.  The  Queen  v.  Eertrand,  Law  Rep.  1 
P.  C.  520. 


CH.  VII.]  NEW    TRIAL   IN    CRIMINAL    CASES.  115 

§  5.  It  is  held  in  New  York,  that  bills  of  exceptions,  in 
criminal  cases,  were  unknown  to  the  common  law.  The 
right  to  a  bill  of  exceptions  in  such  a  case  is  given  by 
statute.  Its  office  is,  to  bring  up  for  review  questions  of 
law  made  and  decided  on  the  trial.  But  the  statute, 
which  gives  the  right,  limits  it  to  exceptions  taken  on 
the  trial  of  the  main  issue.' 

§  6.  It  is  the  general  rule,  that  the  right  to  file  excep- 
tions, in  a  criminal  case,  is  confined  to  the  defendant} 
And  that  a  new  trial  will  not  be  granted  after  an  acquit- 
tal^ Thus,  a  defendant  having  been  acquitted  under  an 
instruction  from  the  court,  the  court  above  will  not  set 
aside  the  verdict  because  the  instruction  was  erroneous.* 
So,  where  a  defendant  has  been  regiilarl}-  tried,  acquitted, 
and  discharged,  the  Supreme  Court  will  not  adjudicate 
points,  raised  by  a  bill  of  exceptions,  and  brought  up,  by 
a  writ  of  error,  on  the  part  of  the  State.*  So,  upon  an 
indictment  for  a  nuisance,  the  prosecuting  oflicer  moved 
for  a  new  trial,  after  acquittal,  on  the  ground  that  the 
verdict  was  against  law  and  evidence.  But  the  court 
held,  although  the  case  was  one  of  mere  misdemeanor, 
"  in  which  neither  the  life  nor  body  can  be  called  in  ques- 
tion," yet  "the  same  rule  holds  good  in  all  cases  upon 
penal  statutes,  and  upon  indictments  and  informations  for 
misdemeanors,  as  well  as  felonies,"  and  a  new  trial  was 
refused.® 

§  Qa.  It  is  said,  in  a  late  case,  "  We  believe  it  is  under- 
stood, that  in  England,  though  there  may  have  been  a  few 

'  Wynhamer  v.  People,  20  Barb.  54.     See  Com.  v.  Rol)y,  12  Pick. 

567.  496. 

2  The  Commonwealth   v.   Cum-  *  State  «.  Baker,  19  Mis.  683. 

miugs,  3  Cush.  212.  5  gtate    v.    Hand,    1    Eng.  169  ; 

»  The  State  v.  Taylor,  1  Hawks,  State  v.  Denton,  ib.  259. 

462 ;   The  State   v.   Martin,   3  ib.  «  State  t.  Wriglit,  3  Brev.  421. 

381;  The  State  v.  Hanouse,  1  Spen-  Ace.  Leemaun  v.  Day,  Str.  899 ;  2 

cer,  115  ;  The  State  «.  Wright,  3  ib.  1238;  The  King  v.  Bear,  Salk. 

Brevard,  421;  The  State  v.  Riley,  2  646  ;  1  Show.  336. 
ib.  444 ;  State  v.  Brown,  16  Conn. 


116  THE    LAW    OF   NEAV    TRIALS.  [CH.  VII. 

doubtful  cases  to  the  contrary,  a  bill  of  exceptions  cannot 
be  taken  in  a  criminal  case,  even  by  the  party  accused  and 
brought  to  trial;  but  we  are  not  aware  that  the  right  has 
ever  licen  claimed  by  the  crown,  to  file  a  bill  of  exceptions, 
with  a  view  of  bringing  a  writ  of  error,  in  case  of  a  judg- 
ment of  acquittal.  We  believe  that  a  bill  of  exceptions, 
ill  favor  of  the  accused  in  this  commonwealth,  is  of  com- 
paratively recent  origin,  and  given  by  statute."^ 

§  7.  In  a  recent  English  case  the  judges  were  much 
divided  in  opinion  upon  the  point,  whether,  in  an  indict- 
ment involving  a  civil  right  which  may  be  bound  by  the 
verdict,  a  new  trial  may  be  granted  after  a  verdict  for  the 
defendant.  A  majority  of  the  judges  were  of  opinion, 
that,  where  an  indictment  charged  the  defendant  with 
erecting  an  obstruction  to  the  navigation  of  the  Menai 
Straits,  and  the  right  to  an  oyster  fishery  was  in  question, 
the  court  ought  not  to  grant  a  new  trial,  after  verdict  for 
the  defendant.^ 

§  7rt.  Two  early  English  cases  seem  to  furnish  a  deep 
and  strong  foundation  for  the  above  stated  (§  6)  and  now 
well-established  rule  of  American  law.  In  the  ancient 
case  of  The  King  v.  Eenwick,  1  Sid.  153,  the  defendants 
were  indicted  for  perjury,  and  acquitted.  A  new  trial 
was  moved  for,  upon  the  ground  that  their  acquittal  had 
been  procured  by  unlawful  practices  of  Sir  John  Jackson, 
in  whose  behalf  they  had  committed  the  alleged  perjury. 
The  point  appears  to  have  been  much  discussed,  but  the 
court  arrived  at  the  conclusion,  that,  although  it  was  a 
case  authorizing  the  imposition  of  a  heavy  fine  upon  Sir 
John  Jackson,  yet  there  was  no  precedent  for  a  new  trial, 
but  the  record  of  acquittal,  which,  contrary  to  the  prac- 
tice in  mere  civil  cases,  was  before  the  court,  precluded 
such  an  interposition.     So  (in  the  words  of  the  Report), 

«  Per  Shaw.  C.  J.,  Com.  v.  Cum-  ^  Regina  v.  Russell,  20  Eug.  Law 
mings,  3  Cush.  210-6.  and  Eq.  2:j0. 


CH,  VII.]  NEW    TRIAL   IN    CRIMINAL   CASES.  117 

in  case  of  an  information  for  assault  and  riot — and  a  ver- 
dict for  the  defendants.  Tremain  Sergeant  moved  for  a 
new  trial  upon  affidavits  of  the  fact,  and  that  the  judges' 
directions  were  to  find  the  assault :  which  I  opposed  be- 
cause in  a  criminal  proceeding,  and  no  corruption  or  prac- 
tice showed.  And  a  new  trial  was  denied,  for  that  the 
court  said  there  could  be  no  precedent  shown  for  it  in  case 
of  acquittal,' 

§  8.  The  result  of  the  cases  is  thus  stated  by  an  ap- 
proved writer  upon  criminal  law.  "  After  an  acquittal  of 
the  defendant,  on  an  indictment  for  either  felony  or  mis- 
demeanor, there  can  in  general  be  no  new  trial,  though 
the  result  be  produced  by  error  of  law  or  misconception 
of  fact.  But  in  England  in  cases  of  misdemeanor,  and  in 
this  country  in  all  eases  where  the  verdict  has  been  ob- 
tained by  fraud  of  the  defendant,  or  in  consequence  of 
irregularity  in  his  proceedings,  as  by  keeping  back  wit- 
nesses for  the  prosecution,  or  neglecting  to  give  due  notice 
q£  trial,  and  in  cases  where  the  object  of  the  proceeding 
substantially  is  to  try  a  right,  and  the  verdict  would  bind 
the  right,  as  in  cases  of  indictments  for  non-repair  of  a 
highway  or  a  bridge,  a  new  trial  may  be  had  after  verdict 
for  the  defendant,  if  evidence  have  been  improperly  re- 
ceived, or  there  have  been  misdirection  or  a  verdict  con- 
trary to  the  evidence. — The  test  seems  to  be  this:  Where 
only  a  fine  can  be  imposed,  there  can  be  a  new  trial  after 
an  acquittal.  VYhere  the  punishment  involves  imprison- 
ment or  other  personal  discipline,  the  acquittal  is  final. "^(a) 

>  The  King  t.  Davis,  1  Shower,        «  2  Whart.  Cr.  L.  3054. 
336. 

{a)  In  case  of  The  Queen  v.  Chorley,  12  Ad.  &  Ell.  N.  S.  513,  a  new 
trial  was  ordered  for  misdirection,  after  verdict  for  the  defendants  on  an 
indictment.  Tlie  general  point  was  not  alluded  to.  Ace.  the  Queen  v. 
Leigh,  10  Ad.  &  Ell.  398. 


118  THE    LAW    OF    NEW    TRIALS.  [CH.  VII. 

§  9.  It  lias  been  sometimes  questioned,  whether  the  de- 
fendant in  a  criminal  case  could,  even  on  his  own  motion, 
and  after  conviction, be  tried  a  second  time;  whether  the 
common  law  doctrine  and  the  constitutional  provisions 
on  this  subject  could  be  effectually  waived,  even  by  his 
deliberate  consent  and  formal  action.     In  what  may  be 
regarded  as  the  leading  case  upon  this  point,  a  capital  case 
of  robbery  upon  the  high  seas,  the  clause  in  the  Constitu- 
tion of  the  United  States — "nor  shall  any  person  be  sub- 
ject, for  the  same  offence,  to  be  twice  put  in  jeopardy  of 
life  or  limb,"  was  held  to  preclude  a  new  trial  on  motion 
of  the  prisoner  after  conviction.    In  his  elaborate  opinion, 
Judge  Story  says:  "It  is  nowhere  laid  down  as  a  part  of 
the  maxim,  that  if  he  is  acquitted  he  shall  not  be  tried 
again;  but  if  he  is  convicted  he  may  be  allowed  a  new 
trial.     And  if  the  court  are  to  assume  the  power  in  favor 
of  the  prisoner,  why  may  it  not  equally  assume  it  when  it 
will  prevent  (effect)  a  manifest  fraud,  to  suffer  his  acquittal 
to  remain.     Cases  may  easily  be  put  where  an  acquittal 
may  have  been  produced  by  gross  bribery  of  the  witnesses, 
by  false  testimony  fraudulently  procured  by  the  prisoner, 
by  spiriting  witnesses  away,  and  even  by  means  still  more 
offensive  and  revolting  to  public  justice. — Cases  of  con- 
viction may  readily  be  conceived,  in  which  a  new  trial 
may  be  injurious  to  the  prisoner.    Suppose  a  man  indicted 
for  murder  and  convicted  of  manslaughter;  can  a  new 
trial  be  granted  at  all,  unless  by  putting  him  twice  in 
jeopardy  of  his  life.     Many  other  cases  of  a  like  nature 
may  be  easily  put  where  the  offence  in  an  aggravated  form 
is  a  capital  felony,  and  without  such  aggravations  not.     I 
am,  upon  the  most  mature  deliberation,  of  opinion  that 
this  court  does  not  possess  the  power  to  grant  a  new  trial 
in  case  of  a  good  indictment,  after  a  trial  by  a  regular 
and  competent  jury,  whether  there  be  a  verdict  of  acquittal 
or  conviction.    My  judgment  is  that  the  words  in  the  Con- 
stitution 'nor  shall  any  person  for  the  same  offence  be 
twice  put  in  jeopardy  of  life  or  limb,'  mean  that  no  person 


en.  VII.]  NEW    TRIAL    IN   CRIMINAL   CASES.  119 

shall  be  tried  a  second  time  for  the  same  oifence  where  a 
verdict  has  already  been  given.  The  party  tried  is,  in  a 
legal  as  well  as  common  sense,  in  jeopardy  of  his  life  when 
a  lawful  jury  have  once  had  charge  of  his  ofience  as  a 
capital  offence  upon  a  good  indictment,  and  have  delivered 
themselves  of  the  charge  by  a  verdict.  This,  too,  is  the 
clear,  determined,  and  well-settled  doctrine  of  the  common 
law,  acting  upon  the  same  principle  as  a  fundamental  rule 
of  criminal  jurisprudence.  I  deem  it  a  privilege  of  inesti- 
mable value  to  the  citizen,  and  that  it  was  introduced  into 
the  Constitution  upon  the  soundest  principles  of  prudence 
and  justice.  But  if  it  were  otherwise,  it  is  my  duty  to 
administer  the  Constitution  as  it  stands,  and  not  to  incor- 
porate new  provisions  into  it.  If  this  clause  does  not  pro- 
hibit a  new  trial  when  there  has  already  been  a  regular 
trial  and  verdict,  then  it  is  wholly  immaterial  whether  the 
verdict  is  of  acquittal  or  of  conviction ;  and  the  same  party 
may,  in  the  discretion  of  the  court,  be  put  upon  his  trial 
ten,  nay  twenty,  times  if  the  court  should  think  fit. "'(a) 

§  10.  A.  was  indicted  for  murder,  and  was  arraigned 
on  Thursday.  Friday  was  assigned  for  his  trial.  He  in- 
sisted on  a  continuance,  as  he  had  a  right  to  a  copy  of 
the  indictment  three  days  before  trial.  He  was  tried  on 
Friday  and  convicted.  Held,  that  what  A.  said  amounted 
to  a  demand  for  a  copy  of  the  indictment,  and  a  new  trial 
was  granted.^ 

'  Per  Story,  J.,  U.  S.  v.  Gilbert,  2  State  v.  Winningliam,  10  Rich. 
2  Sumn.  19.  Law  (S.  C.)  257. 

(a.)  This  is  termed  by  Mr.  Wharton  (2  Crim.  L.  §  3075),  "an  argument 
of  singular  learning,  ability,  and  boldness ;"  but,  says  the  same  author 
(ib.  §  3078),  "  it  cannot  be  held  to  have  shaken  the  practice  of  the 
country." 

After  a  verdict  of  guilty  of  manslaughter,  and  a  reversal  of  the  judg. 
ment,  the  prisoner  is  not  protected  from  a  second  trial  by  the  provision 
in  the  bill  of  rights,  that  "the  accused  shall  not  be  twice  put  in  jeopardy 
for  the  same  offence."     SutclifTe  v.  The  State,  18  Ohio,  469. 


120  THE   LAW    OF   NEW    TRIALS.  [CH.  VII. 

§  11.  B.  was  indicted  jointly  with  A.  for  murder.  He 
was  arraigned  on  Thursday,  and  his  trial  assigned  for 
Friday.  Without  asking  for  a  continuance,  he  moved 
for  a  bench  warrant  for  witnesses.  On  Friday,  he  insisted 
on  a  continuance,  for  the  reason  that  he  was  entitled  to  a 
copy  of  the  indictment.  A  continuance  was  refused,  and 
he  was  tried  and  convicted.  On  appeal,  the  court  ordered 
ex  gratia^  that  he  should  have  a  new  trial. ^ 

§  12.  "Where  a  female  is  convicted  of  a  penitentiary 
otfence,  her  pregnancy  is  no  cause  for  a  new  trial.^ 

§  12a.  In  England,  where  a  defendant  has  been  found 
guilty  of  an  oflence  which  does  not  subject  him  to  corporal 
punishment,  it  is  not  necessary  that  he  should  be  present 
in  court  in  order  to  move  for  a  new  trial.^  Otherwise, 
where  a  defendant  has  been  found  guilty  of  perjury  and 
sentenced  to  transportation,  but  is  not  in  custody  under 
the  sentence.^  But,  it  seems,  where  several  defendants 
have  been  convicted,  it  is  not  necessary  that  all  should  be 
in  court  in  order  to  move  for  a  new  trial  in  behalf  of  one 
or  more  of  them.^  In  Arkansas  and  Tennessee,  in  all  cases 
of  treason  and  felony,  unless  the  defendant  be  present 
when  the  verdict  is  rendered,  the  verdict  cannot  stand.^ 

'  State  V.  Winningliam,  10  Ilich.  ■»  Ilrsina  v.  CaudwcU,  6  Eng. 
Law  (S.  C.)  257.  Law  A:'  Eq.  353. 

2  Holeman  v.  The  State,  8  Eng.        ^  lb. 

105.  6  Clark  i\  The  State,  4  Humph. 

3  Regina  v.  Parkinson,  G  Eng.  254;  Cole  v.  The  State,  5  Eng.  318. 
Law  and  Eq.  352. 


en.  VIII.]       JURY.      VERDICT    AGAINST    LAW,    ETC. 


121 


CHAPTER  VIII. 


GROUNDS  OF  NEW  TRIAL— GROUNDS  RELATING  TO  THE 
JURY;  VERDICT. 


1.    General     gronnds  —  irregu- 
larity and  injustice. 

10.  General  and  special  verdicts. 


19.  Form  of  verdict — uncertain- 
ty,  generality,  inconsistency,  &c. 

30.  Amendment  of  verdict;  send- 
ing back  of  jury,  remittitur. 


§  1.  Before  proceeding  to  consider  in  detail  the  grounds 
upon  which  a  new  trial  may  be  granted,  it  may  be  stated 
as  a  general  proposition,  that  a  motion  for  a  new  trial, 
based  upon  facts,  is  addressed  to  the  sound  discretion  of 
the  court,  but  should  always  be  allowed,  if  the  verdict  is 
contrary  to  law,  or  works  manifest  injustice  to  the  party 
applying.^  Wlien  the  jury  have  misunderstood  or  disre- 
garded the  evidence  or  instructions,  or  neglected  properly 
to  consider  the  facts,  or  overlooked  prominent  and  essen- 
tial points  in  them,  and  have  failed  to  do  substantial 
justice,  the  verdict  must  be  set  aside,  and  a  new  trial 
granted.^(a) 


1  Cook  V.  U.  S.,  1  Iowa,  56. 


2  Higgins  V.  Lee,  16  111.  495. 


(a)  See  chapters  1,  3.  In  Connecticut,  a  motion  in  arrest  of  judg- 
ment was  sustained,  for  improper  conduct  of  a  juror.  29  Conn.  100.  The 
rule  stated  in  the  text  is  not  inconsistent  with  the  other  proposition, 
equally  well  established,  that  all  questions  of  fact  are  for  the  jury. 
Schilling  v.  Durst,  42  Penn.  126 ;  Garrett  v.  Gonter,  42  Penn.  143.  As 
to  finding  the  facts,  yvhen  the  trial  is  by  the  court,  see  Kurlbaum  v. 
Roepke,  27  Mis.  161;  Brosius  v.  McGaugh,  ib.  230;  Chick  v.  Parker, 
ib.  418.  In  California,  a  jury  trial  is  waived  by  a  party,  if  he  fails  to 
file  a  notice  six  days  before  the  commencement  of  the  term  that  a  jury 
will  be  required ;  but  the  court  still  has  a  right  to  direct  an  issue  of  fact 
to  be  tried  by  a  jury.     Doll  v.  Anderson,  27  Cal.  248.     Upoa  the  trial 


122  THE    LAW    OF    NEW    TRIALS.  [CH.  VIII. 

§  2.  On  the  other  hand,  the  general  proposition  is  laid 
down,  that  a  verdict  (as  in  case  of  a  verdict  impeaching 


of  an  issue  of  fact  by  the  court,  its  decision  is  required  to  be  in  writing, 
and  the  court  may  re-open  and  continue  the  case  though  it  has  announced 
orally  a  decision.  Hastings  v.  Hastings,  31  Cal.  95.  The  rule,  that  the 
judge  may  draw  up,  sign,  and  file  his  findings,  without  notice  to  the  attor- 
neys, prevails,  whether  they  are  drafted  by  him  or  by  another.  Hatha- 
way V.  Ryan,  35  Cal.  188.  If  there  is  a  material  fact  in  respect  to  which 
the  findings  are  silent,  the  aggrieved  party  may  except,  and,  if  the  court 
still  refuses  to  find  as  to  that  fact,  it  will  be  error,  on  appeal.  If  the 
court  finds  contrary  to  the  evidence,  or  without  sufficient  evidence,  this 
is  ground  for  a  new  trial,  and  not  for  exception.  lb.  Ex  parte  affidavits 
cannot  supply  the  want  of  findings.  If  upon  request  the  court  refuses 
or  fails  to  put  its  findings  in  writing,  &c.,  the  remedy  is  by  exception  and 
appeal.  Sanchez  v.  McMahon,  35  Cal.  218.  If  on  appeal  from  an  order 
denying  a  new  trial  the  court  finds,  on  review  of  the  evidence,  that  it  was 
against  such  of  the  implied  findings  of  the  court  as  were  essential  to  sus- 
tain the  judgment,  and  was  not  substantially  conflicting;  it  will  reverse 
the  judgment  and  grant  a  new  trial.  Steinback  v.  Krone,  36  Cal.  303. 
The  finding  of  a  fact  on  a  material  point,  contrary  to  a  stipulation  made 
as  a  substitute  for  evidence,  is  ground  for  a  new  trial.  Carpcntier  v. 
Small,  35  Cal.  346.  In  North  Carolina,  the  fact  that  a  county  court,  by 
a  special  statute,  cannot  hold  jury  trials,  does  not  deprive  a  party  of  his 
common  law  right,  to  have  issues  of  fact  tried  by  a  jury;  and  in  such 
case  the  cause  should  be  transferred  to  the  superior  court.  Buchanan  v. 
McKenzie,  8  Jones,  L.  91.  In  Mississippi,  if  an  issue  of  fact  by  agree- 
ment is  submitted  to  a  probate  judge  "  in  lieu  of  a  jury,"  his  decision 
will  have  the  force  and  eff'ect  of  a  verdict.  Kelly  v.  Miller,  39  Miss.  17. 
In  New  York,  where,  in  case  of  a  breach  of  trust,  the  fund  remains  land, 
and  the  plaintiff"  seeks  specific,  equitable  relief,  joining,  as  defendants 
with  the  trustees,  third  persons  who  claim  an  interest  in  the  land,  and 
pending  the  action  files  a  supplemental  complaint,  in  which  he  alleges 
that  the  land  has  meanwhile  been  converted  into  money,  and  claims 
damages,  as  well  as  all  the  relief  originally  asked,  not  inconsistent  there- 
with ;  the  action  is  still  triable  by  the  court  without  a  jury.  Currie  v. 
Cowles,  9  Bosw.  642.  The  findings  of  a  judge  in  a  case  of  conflicting  evi- 
dence are  conclusive  as  to  questions  of  fact.  Ritter  v.  Cushman,  7  Rob. 
294.  In  Wisconsin,  where  a  court  finds  that  A.  was  a  grantee  of  land 
from  B.,  and  not  that  such  conveyance  was  voluntary  or  fraudulent;  this 
is  equivalent  to  finding  that  A.  was  a  purchaser  in  good  faith  and  for  a 
valuable  consideration.  Coyle  v.  Davis,  20  Wis.  564.  The  court  above 
will  order  a  new  trial,  where  it  is  probable  that  the  ends  of  justice  will 
be  thereby  subserved  better  than  by  sending  the  judgment  down  to  be 


CH.  VIII.]      JURY.      VERDICT    AGAINST   LAW,   ETC.  123 

the  report  of  Commissioners  in  a  case  of  flowage)  will  not 
be  set  aside,  unless  it  appears  that  the  jury  were  under 
improper  influence,  guided  by  prejudice,  or  aftected  by 
some  bias  unwarranted  by  the  evidence,  or  that  they,  in 
some  important  particular,  misconceived  the  facts.^ 

§  3.  More  especially,  if  the  jury,  in  a  civil  case^  disre- 
gard the  instructions,  a  new  trial  should  be  granted  by 
the  court  below,  or,  on  refusal,  by  the  court  above.-(a) 

§  4.  The  cases  illustrative  of  the  general  proposition 
above  stated  (§  1)  are  numerous,  and  of  course  of  a  miscel- 

i  Bryant  v.  Glidden,  39  Maine,  ^  Hayward  v.  Ormsbee,  7  Wis. 
458.  Ill- 


amended.  Curtis  V.  Brown  County  Supervisors,  22  Wis.  161.  In  Ne- 
vada, when  one  of  the  facts  found  by  the  judge,  and  the  one  on  which, 
in  his  opinion,  the  case  turns,  is  unsupported  by  evidence;  the  court 
above  will  not  treat  that  finding  as  surplusage,  and  afBrm  the  judgment 
on  other  findings,  particularly  if  the  weight  of  testimony  is  against  the 
others.  Lockhart  v.  Mackie,  2  Nev.  294.  In  Michigan,  when  a  judg- 
ment is  entered  in  term,  and  signed  by  the  judge  (except  where  a  special 
finding  is  needed),  the  signing  is  equivalent  to  a  written  finding.  Cleve- 
land V.  Stein,  14  Mich.  338. 

In  New  Hampshire,  under  Rev.  Stats,  c.  192,  §  2,  the  Supreme  Court 
is  authorized  to  grant  a  new  trial  or  review  in  any  case  where  the  party 
has  not  enjoyed  that  right,  when  it  shall  appear  that  justice  has  not 
been  done,  through  any  accident,  mistake,  or  misfortune,  and  that  a  fur- 
ther hearing  would  be  just  and  equitable.  It  is  clearly  the  misfortune 
of  the  defendant  to  have  a  judgment  rendered  against  him  in  his  absence, 
and  without  actual  notice,  for  a  larger  sum  than  appears  to  have  been 
justly  due,  and  in  such  case  a  new  trial  will  be  granted.  Chase  v. 
Brown,  32  N.  H.  130.  See  Farley  v.  Budd,  14  Iowa,  289 ;  Taylor  v. 
Cook,  ib.  501 ;  Turson  v.  W^elch,  7  Rob.  (N.  Y.)  392. 

(a)  A  new  trial  will  be  ordered,  if  a  verdict  is  found  on  a  misapplica- 
tion of  facts  in  the  charge,  although  two  juries  may  have  rendered  the 
same  verdict  upon  the  same  state  of  facts.  Pensacola  v.  Nash,  12  Fla. 
497.  A  petition  for  a  new  trial  will  not  be  granted,  because  the  jury 
misunderstood  the  instructions  and  mistook  the  rule  of  damages,  unless 
due  diligence  has  been  used  to  correct  the  mistake.  Thayer  v.  Stevens, 
44  N.  H.  484. 


124  THE    LAW    OF    NEW    TRIALS.  [CII.  VIII. 

lancoiis  character.  Thus  a  new  trial  was  granted,  where, 
in  an  action  for  lil)el  u}ion  an  officer,  the  judge  instructed 
tlie  jury  that  the  publication  was  libellous ;  and  being 
told,  upon  inquiry,  that  a  verdict  for  a  shilling  wpuld 
carry  costs,  they  found  for  the  defendant.*  So  where  the 
judge,  in  summing  up  in  favor  of  one  party,  was  stopped 
by  the  jury,  who  declared  themselves  satisfied,  but  found 
immediately  for  the  other.^  So  where,  in  an  action  for 
libel,  the  justification  was  fully  proved,  but  the  jury, 
contrary  to  the  judge's  direction,  found  for  the  plaintiif, 
though  for  small  damages.^  So  it  is  regarded  as  special 
ground  for  setting  aside  a  verdict  against  evidence,  if  the 
judge  reports  that  the  verdict  was  rendered  through  pre- 
judice, and  against  his  direction.^ 

§  5.  Other  examples  are  the  following:  A  witness  for 
the  defendant  denied  having  conversed  with  the  plain- 
tift"'s  attorney ;  who,  however,  testified  to  such  conversa- 
tion, and  the  former  witness  was  committed  for  perjury. 
The  next  day,  the  attorney  informed  the  judge  that  he 
had  mistaken  the  person  of  the  witness;  who  was  accord- 
ingly discharged,  and  a  new  trial  granted,  and  the  attor- 
ney ordered  to  pay  the  costs.-\«)  Where  the  evidence  has 
failed  to  support  several  material  allegations  of  the  decla- 
ration.^ Where  the  state  of  the  pleadings  was  calculated 
to  confuse  the  minds  of  the  jury,  and  to  make  it  impossi- 
ble for  them  to  render  an  intelligent  verdict.^     AVhere  a 

'  Levi  V.  Milne,  2  Bing.  195 ;  13  <  State   v.  Caleb  Jones,  2  Bay, 

Moore,  418.  520. 

2  Gainsford     v.    BlatcUford,     6  ^  Trubodj'  v.  Brain,  9  Price.  76. 
Price,  36.  ^  Watidns  v.  K().-;ers.  21  Ark.  298. 

3  Freeman  v.  Price,  1  Y.  and  J.  ^  Pearce  v.  Jordan,  9  Flor.  526. 
402. 

(a)  The  court  has  power  to  grant  a  new  trial  where  it  is  satisfied  that 
perjury  has  been  committed,  and  that  an  improper  verdict  was  occa- 
sioned thereby;  but  the  matter  rests  in  the  sound  discretion  of  the  court, 
and  it  would  require  a  case  of  the  grossest  character  to  authorize  the 
appellate  court  to  interfere.    Jaccard  v.  Davis,  43  Mis.  535. 


CH.  VIII.]       JURY.      VERDICT    AGAINST    LAW,    ETC.  125 

declaration  contains  two  counts,  one  of  them  defective,  or 
an  error  being  committed  as  to  one  of  them,  and  testimony 
is  given,  and  the  judge  charges  as  to  both,  and  a  general 
verdict  is  given  for  the  j)laintifF.^  Where  a  verdict  is 
taken  by  agreement,  but  the  parties  mistook  the  effect  of 
the  agreement.^  So  it  is  ground  for  new  trial,  that  the 
plaintiff's  attorney  failed  to  produce  a  paper,  which  after 
suit  commenced  he  had  admitted  to  the  defendant  Avas  in 
his  hands,  but  which  he  had  since  parted  with.^  Or  that 
a  party  produced  an  interested  witness,  the  interest  being 
known  to  him,  but  not  to  the  other  party,  and  the  case 
being  nicely  balanced.^  In  a  penal  action,  upon  the  statute 
to  prevent  the  slave-trade,  a  verdict  for  the  defendant  was 
set  aside,  on  the  ground  that  he  had  offered  in  evidence 
false  depositions  and  documents;  the  court  remarking, 
that  even  in  a  criminal  prosecution  a  verdict  obtained  by 
forgery  and  perjury  would  be  set  aside.*  (See  p.  2  and 
chap.  7.)  The  plaintiff"  had  sold  goods  to  the  defendant, 
and  taken  in  payment  the  note  of  a  third  person,  indorsed 
by  the  defendant,  but  gave  time  to  the  maker  of  the  note, 
and  the  latter  failed.  The  plaintiff  then  brings  an  action, 
declaring  upon  the  note  and  for  goods  sold.  The  defend- 
ant of  course  could  not  produce  the  note,  and,  it  being  un- 
derstood that  the  real  claim  was  against  him  as  indorser, 
gave  the  plaintiff  no  notice  to  produce  it ;  but  the  plain- 
tiff* at  the  trial  relied  upon  the  other  count  and  recovered. 
Held,  the  verdict  was  founded  upon  an  unfair  advantage, 
contrary  to  justice  and  good  conscience,  and  should  be  set 
aside  without  costs;  the  court  declaring,  at  the  same  time, 
that  in  another  similar  case  they  would  require  the  plain- 
tiff to  pay  costs.^  (The  case  is  somewhat  peculiar,  in  that 
Lord  Mansfield,  before  whom  it  was  tried,  warned  the 
plaintiff'  that  the  verdict  would  not  stand,  but  he  still 


'  Wilson  V.  Tatum,  8  Jones,  300.  *  Niles  v.  Brackett,  If)  Mass.  378. 

2  Lucas  V.  Lucas,  30  Ga.  191.  ^  Hylliard  v.  Nickols,  2  Root, 170. 

=*  Jackson  v.  Warford,  7  Wend.  ^  Anderson  v.  George,   1  Burr. 

63.  353. 


126   "  THE   LAW    OF   NEW    TIUALS.  [CII.  VIII. 

refused  to  produce  tlie  note,  and  tlie  verdict  was  in  his 
favor.)  Other  examples  are  the  following:  In  an  action 
for  freight  and  demurrage,  the  verdict  was,  "We  find  for 
the  plaintitf,  and  are  of  opinion  that  the  plaintiff  has 
ah-eady  received  out  of  property  of  the  defendant  payment 
in  full,"  &c.^  Verdict  in  debt,  specifying  no  sum.  The 
defect  cannot  be  supplied  by  a  writ  of  inquiry.^  In  debt 
on  bond  with  penalty  and  damages  assessed,  if  the  verdict 
finds  that  the  defendant  owes  the  debt  and  one  shilling 
damages ;  the  real  damages  should  be  assessed.^  "Where, 
in  an  action  for  loss  of  service  of  an  apprentice  during 
the  whole  residue  of  his  term,  the  jury  found  a  verdict 
for  the  plaintiff,  not  specifying  for  what  time.^  So  it  is 
ground  for  new  trial,  where  the  jury,  in  a  special  verdict, 
find  the  evidence  and  not  fasts. ^(a) 

§  6.  So  a  new  trial  was  granted  in  the  following  case. 
While  the  plaintiff's  counsel  was  drawing  a  special  ver- 
dict, the  defendant's  witness  came  in,  and  his  counsel 
moved  to  appear  and  try  the  case;  ])ut  the  motion  Avas 
overruled.  A  special  verdict  was  then  drawn  and  found, 
that  the  defendant  "  does  not  appear,  nor  offer  any  evi- 
dence," &c.^ 

§  7.  In  an  action  for  false  imprisonment  for  two  or 
three  hours,  the  jury  gave  a  verdict  for  £2000  damages. 
In  ordering  a  new  trial  for  excessive  damages.  Holt,  C.  J., 

1  1  S.  &  R.  3G7.  rested.     Sec  Morice  v.  Prince,  Cro. 

*  jNIiller  «.  Ilowcr,  2  Rawle,  oS.  Car.  520.     A  case  of  tcrtt  of  error, 

3  Drodge  v.  Brand,  2  Wil.  377.  for  uncertainty  of  verdict. 

••  Hambledon  v.  Veere,  2  Saun.  '^  Cherry  v.  Slade,  3  Murph.  82. 

171.    In  this  case  judgment  was  ar-  ^  Mirwan  v.  Ingersol,  3  Cow.  367. 


(a)  A  verdict  subject  to  the  opinion  of  the  court  must  present  only 
questions  of  law.  Whitaker  v.  Merrill,  28  Barb.  526.  In  case  of  a  spe- 
cial verdict,  it  is  held  error  to  re-submit  the  case,  with  instructions  for  a 
general  verdict.  Spalding  v.  Mayhall,  27  Mis.  397.  See  Cleveland  v. 
Terry,  8  Ohio  N.  S.  570. 


CH.  VIII.]       JURY.      VERDICT    AGAINST   LAW,    ETC.  127 

remarked :  "The  jury  were  very  shy  of  giving  a  reason — 
but  I  did  rectify  that  mistake,  for  the  jury  are  to  try 
causes  with  the  assistance  of  the  judge,  and  ought  to  give 
reasons  when  required,  that,  if  they  go  upon  any  mistake, 
they  may  be  set  right."^ 

§  8.  So  a  new  trial  w^ill  be  granted,  wdiere  the  jury  find 
a  verdict. for  the  plaintift',  subject  to  the  opinion  of  the 
court  as  to  the  operation  of  the  law  upon  certain  wu'itten 
and  oral  evidence,  without  finding  what  facts  were  proved 
by  such  evidence.2  So  where,  in  an  action  depending 
upon  a  will,  the  jury  were  instructed  to  find  whether  the 
will  had  been  altered,  and  by  whom;  and  they  found 
that,  "the  will  had  been  altered  by  some  interested 
person."^ 

§  9.  But  it  seems  a  new  trial  will  not  be  granted,  where 
in  ejectment  the  jury  find  for  the  plaintiff,  and  also  that 
he  pay  the  defendant  a  just  compensation  for  improve- 
ments; although  the  latter  finding  is  void  for  uncertainty.^ 
So  a  verdict  in  detinue  in  these  words :  "  We  find  all  the 
issues  for  the  plaintifif,  and  that  the  slaves  named  in  the 
proceedings"  (specifying  them  by  name) "  are  the  property 
of  the  plaintiff,  and  that  the  said  slaves  are  in  value  worth 
as  follows,"  &c. ;  "  and  as  the  plaintifi'  releases  all  damages 
for  hire,  we  assess  the  value  of  said  slaves,  to  wit,  $3450,  as 
damages  for  the  plaintifi',  to  be  discharged  upon  delivery 
of  said  slaves  by  the  defendant  to  him ;"  was  held  sub- 
stantially corrrect  and  proper  in  form.  And  a  judgment, 
that  the  plaintiff  recover  the  slaves,  and,  on  failure  to 
deliver  on  demand,  the  said  sum  of  $3450,  his  damages 
so  assessed,  though  not  in  the  proper  form,  will  be  cor- 
rected on  error  and  affirmed.^  So  the  disclosure  of  the 
verdict  in  a  criminal  case,  by  the  jury,  by  direction  of 

•  Ash  V.  Ash,  Comh.  357.  ^  Allen  v.  Flock,  2  Penn.  (P.  & 

2  Blanks  v.  Foushee,  4  Munf.  61.     W.)  159. 

3  Maliu  V.  Malin,  15  John.  293.  ^  Rambo  v.  Wyatt,  32  Ala.  363. 


128  THE    LAW    OF    NEAV    TRIALS.  [CII.  VIII. 

tlie  court,  before  the  verdict  is  actually  taken  iu  court, 
is  no  ground  for  a  new  trial.' 

§  10.  Unless  otherwise  directed  by  the  court,  the  jury 
may  render  either  a  general  or  special  verdict ;  but,  upon 
the  request  of  either  party,  it  is  held  that  the  court  must 
direct  a  special  verdict  upon  all  or  any  of  the  issues ;  and, 
if  requested  by  either  party,  the  court  must  direct  the 
jury,  if  they  render  a  general  verdict,  to  find  specially 
upon  particular  questions  of  fact.^  So  the  court  may  order 
the  jury  to  return  with  a  general  verdict  answers  to  spe- 
cific questions,  though  one  or  both  of  the  parties  object.^ 
And  where  a  case  turned  upon  the  legality  of  an  election, 
which  the  judge  considered  to  be  valid,  and  so  instructed 
the  jury,  ordering  them  to  find  a  special  verdict;  but 
they  returned  a  general  verdict,  annulling  the  election :  a 
new  trial  was  ordered.^(«) 

'  The  State  v.  Bryant,  21  Vt.  479.     93  ;    Com.    v.  Fischblatt,    4    Met. 

■*  Michigan,    &c.    v.    Bivens,  13    354. 
Ind.  2(i:i  ;"Ruffing  v.  Tilton,  12  ib.         ^  Barstow  v.  Spraguo,  40  N.  H. 
2.')9.     See  Sharp  v.  Baker,  22  Tex.     27.  -  i' 

300  ;  Thoniijson  v.  Farr,  1  Speers,        «    King   v.    Poole,    Rep.    temp. 

Hardw.  23. 

(a)  After  a  finding  on  the  special  issues,  and  a  general  verdict  for  one 
party,  it  is  too  late  for  the  other  to  submit  other  special  issues.  Bur- 
leson V.  Burleson,  28  Tex.  383.  The  defendant  cannot  require  the  jury 
to  respond  to  certain  interrogatories  in  case  they  should  find  for  the 
plaintiff.  The  interrogatories,  if  put,  must  be  answered,  for  whichever 
party  a  general  verdict  is  found.  AVood  v.  Ostram,  29  Ind.  177.  Each 
question  submitted  to  a  jury  as  a  basis  of  a  special  verdict  should  relate 
only  to  one  fact.  Phccnix  v.  Fletcher,  23  Cal.  481.  Whore  the  parties 
agree  in  writing  that  the  court  shall  propound  special  interrogatories  to 
the  jury,  touching  certain  facts,  which  is  done,  and  the  jury  retire,  and 
the  parties  then  further  agree  that  the  jury  may  return  their  verdict  to 
the  clerk,  in  the  ab.scnce  of  the  court  and  counsel,  and,  if  their  verdict 
should  be  defective  tliey  may  "  be  recalled,  and  required  to  make  a  com- 
plete finding  to  said  interrogatories ;"  it  is  too  late  to  object  to  the  in- 
terrogatories. Aiken  v.  Bruen,  21  Ind.  137.  The  plaintiff's  declaration 
contained  three  counts,  showing  three  different  versions  of  the  contract 
out  of  which  the  action  arose,  and  at  the  trial  evidence  was  given  capable 


CH.  VIII.]       JURY.      VERDICT    AGAINST    LA\y,    ETC.  129 

§  11.  It  is  sometiiiies  licld,  however,  that  a  jury  may 
refuse  to  find  any  other  than  a  general  verdict.' 

§  12.  What  is  not  found  by  a  special  verdict  will  be 
taken  not  to  exist.^  It  should  find  every  fact  essential  to 
the  plaintiiF's  right  of  recovery,  and  cannot  bo  aided  by 
intendment  or  a  reference  to  extrinsic  facts.  If  the  facts 
found  show  that  there  were  others,  touching  which  there 
was  evidence,  the  truth  of  which  is  not  negatived  by  the 
finding,  the  court,  without  rendering  a  verdict,  should 
award  a  venire  de  novo.^  The  distinction,  however,  is  made, 
that,  if  a  special  verdict  is  uncertain,  so  that  the  court 
cannot  say  for  which  party  judgment  ought  to  be  given, 
there  ought  to  be  a  venire  de  novo  ;  but  if  the  verdict  is 
not  uncertain,  but  the  plaintiff's  case,  as  thereby  shown, 
is  a  defective  case  or  a  defective  title,  judgment  should  be 
given  for  the  defendant.*  And  where  a  jury,  in  a  crimi- 
nal case,  find  and  tender  a  special  verdict,  which  is  re- 
ceived by  the  court,  and  the  jury  are  discharged,  the  court 
must  proceed  upon  the  verdict.'  So  it  is  no  objection  to 
a  special  verdict,  that  it  was  drawn  up  by  counsel,  in  order 
to  show  what  facts  must  be  inserted,  if  true  and  in  proper 
form,  and  if  the  rights  and  duties  ot  the  jury,  the  effect 
of  their  verdict,  &c.,  were  fully  explained  to  them  by  the 
court.^(a) 

'  Fuller  v.  The  Kennebec,  &c.,  *  Brown  v.  Ferguson,  4  Leigh, 
31  Maine,  325.  37.     See  Dyer  v.  Greene,  10  Sliep. 

2  Thayer  v.  United,  &c. ,  20  Pcnn.     464 

60.     See   Com.   v.  Call,   21    Pick.  ^  gi^ort  v.  The   State,    7  Yerg. 

509  ;  Whitcsides  v.  Russell,  8  W.  510. 

&  S.  44 ;  State  v.  Wallace,  3  Ired.  ^  Miller  v.  Shackleford,  4  Dana, 

195.  264. 

3  Sewall  V.  Glidden,  1  Ala.  52. 

of  supporting  any  one,  but  one  only,  of  these  counts.  The  jury  found  a 
general  verdict  for  the  pUiintiff,  and  the  judge  was  desired,  on  behalf  of 
the  defendants,  to  ask  on  which  count  they  found,  but  refused  to  do  so. 
Held,  he  was  entitled  to  refuse.  Brown  v.  Bristol,  Hurl,  k  Nor.  lOOG. 
(a)  A  special  finding  cannot  control  a  general  verdict,  unless  it  is 
sufficiently  definite  to  authorize  a  judgment.  Delawter  v.  Sand,  26  lud- 
9 


130  THE    LAW    OF   NEW    TllIALS.  [CII.  VIII. 

§  13.  As  a  matter  of  practice,  juries  should  either  not 
state  the  evidence  upon  which  the  conclusions  of  fact  are 

407.  By  §  261  of  the  (N.  Y.)  Code,  the  court  may  in  all  cases  instruct 
the  jury,  if  they  render  a  general  verdict,  to  find  upon  particular  ques- 
tions of  fact,  to  be  stated  in  writing,  and  may  direct  a  written  finding 
thereon,  which  shall  be  filed  with  the  clerk,  and  entered  on  the  minutes. 
In  a  case  where  the  jury  were  so  directed,  and  questions  duly  stated,  a 
general  verdict  was  rendered,  and  the  foreman  stated  orally,  in  answer  to 
11  question  by  the  clerk,  the  special  findings,  but  no  entry  was  made 
thereof  at  the  time  on  the  minutes.  Held,  upon  a  subsequent  motion  by 
the  losing  party  to  enter  such  answers  upon  the  minutes,  the  adverse 
party  might  show  that  such  answers  were  given  under  misapprehension 
of  the  clerk's  question,  and  did  not  conform  to  the  opinion  of  the  jurors, 
and  that  the  entry  must  be  of  tlie  answers  as  intended  to  be  given.  Moss 
V.  Priest,  1  Eob.  032.  The  defendants  having  generally  denied  the 
allegations  of  a  petition  brought  to  subject  the  unexempted  part  of  their 
homestead  to  the  payment  of  a  judgment,  a  special  verdict,  which  fails 
to  find  that  the  judgment  was  rendered  as  alleged  in  the  petition,  is  not 
sufficient  to  sustain  a  decree  of  condemnation.  Paschal  v.  Cushman,  26 
Tex.  74.  When  a  special  verdict  allows  certain  items  of  account,  and 
yet  declares  that  such  allowance  dei)ciids  on  questions  of  law  to  be  con- 
sidered by  the  court;  the  whole  matter  may  properly  be  passed  upon  by 
the  court.  United  States  v.  Collier,  3  Blatchf  0.  C.  .325.  A  judgment 
will  not  be  reversed  for  a  defective  finding  of  facts,  when  no  exception  is 
taken  on  that  account.  McClusky  v.  Gerhauser,  2  Nev.  47.  "Where  the 
jury  make  an  act  of  Congress  a  part  of  their  verdict,  they  will  be  held 
to  have  found  all  the  facts  set  forth  in  the  act,  whether  by  way  of  in- 
ducement or  otherwise.  MaGee  v.  Doe,  9  Flori.  382.  It  is  in  the  dis- 
cretion of  the  court,  what  facts  the  jury  shall  find  specially;  and  it  is 
not  bound  to  submit  questions  to  them  which  are  asked  by  either  party- 
American  V.  Bradford,  27  Cal.  360.  In  an  election  case  contested  by  in. 
formation,  in  which  the  sole  issue  was,  whether  the  relator  or  defendant 
was  entitled  to  an  office,  the  judge  charged  the  jury  that,  if  they  found 
that  a  majority  of  the  legal  votes  were  cast  for  the  relator,  the  form  of 
their  verdict  should  be,  "  we,  the  jury,  find  the  defendant  guilty  of  un- 
lawfully holding  and  cxcrci.sing  the  ofiicc  of,"  ifec.  Held,  a  verdict  in  the 
above  words  warranted  a  judgment,  that  the  defendant  should  be  ousted 
and  excluded  from  liis  office,  and  that  the  relator  should  be  placed  in 
possession  of  the  same,  and  empowered  to  perform  all  the  duties  thereof. 
State  V.  Funck,  17  Iowa,  365.  If  the  jury  are  unable  to  agree  upon  the 
special  issues  that  have  alone  been  submitted  to  them,  they  may  bring  in 
a  general  verdict  with  the  consent  of  counsel.  Mitchell  v.  Hockett,  25 
Cal.  538. 


CH.  VIII.]      JURY.      VERDICT   AGAINST   LAW,    ETC.  131 

founded,  or,  should  they  do  so,  the  highest  evidence  es- 
tablishing the  fact  should  be  referred  to.^  And  if  a  spe- 
cial verdict  find  not  facts,  but  the  evidence  from  which 
facts  may  be  inferred;  a  venire  facias  de  novo  will  be 
awarded.^ 

§  14.  And  to  authorize  a  judgment  upon  a  special  ver- 
dict, all  the  facts  essential  to  the  right  of  the  prevailing 
party  must  be  found,  not  merely  prima  facie  evidence  of 
such  facts.^  Even  though  the  circumstances  stated  may 
be  sufficient  to  warrant  an  inference  or  presumption  of 
the  existence  of  the  matter  omitted.^  Thus  a  verdict  was 
as  follows:  "We,  the  jury,  find  that  in  case  court,  upon 
the  foregoing  statement  of  facts,  should  be  of  opinion, 
that  the  law  of  the  case  is  with  the  plaintiffs,  that  then, 
we  find  for  the  plaintiff,  &c.  But  in  case  that  the  court, 
upon  the  foregoing  statement  of  facts,  should  be  of  opinion 
that  the  law  of  the  case  is  with  the  defendant,  then  we, 
the  jury,  find  for  the  defendant,  &c."  The  foregoing 
statement  of  facts,  referred  to  by  the  jury,  seemed  to  have 
been  the  written  and  oral  testimony,  and  was  not  em- 
bodied in  the  verdict;  and  the  court  below  rendered  judg- 
ment in  favor  of  the  plaintiffs.  The  judgment  was  re- 
versed.* But  on  the  other  hand,  in  some  cases,  it  may  be 
insufficient  to  find  merely  the  facts.  Thus,  upon  a  question 
of  fraud  tried  by  the  court  sitting  as  a  jury,  the  finding 
or  verdict  must  be  express,  and  the  finding  of  special  facts 
is  not  sufficient  to  warrant  a  judgment,  since  fraud  can- 
not, as  a  matter  of  law,  be  inferred.^(a) 

'  Houston  V.  Perry,  3  Tex.  390.      N.  H.  347 ;  Marmaduke  v.  McMas- 
2  Kinsley  v.  Coyle,  58  Penn.  401.     ters,  24  Mis.  51. 
»  Blalic  k  Davis,  20  Ohio,  331.  s  Hambleton    v.    Dempsey,     20 

»  Jones  V.  State.    2   Swan,   309.     Ohio.  108. 
See  Litchfield  v.  Londonderry,  39        ^  Poarce  r.  Burns,  33  Mis.  577 ; 

Pearce  v.  Roberts,  ib.  583. 


(a)  In  a  special  verdict  where  usury  is  pleaded,  the  jury  need  not  find 
the  usury,  if  any:  they  find  the  facts,  and  the  law  infers  the  usury. 
Brummel  v.  Enders,  18  Gratt.  873.     A  special  verdict,  that  the  assignee 


132  THE    LAW    OF   NEW    TRIALS.  [CH.  VIII. 

§  14rt.  "Where  a  verdict  entered  subject  to  tlie  opiuiou 
of  the  court  is  set  aside,  the  court  cannot,  at  a  subsequent 
term,  make  a  new  judgment  in  bar  of  the  defendant,  but 
must  proceed  to  try  the  causc.^ 

§  15.  Where  a  verdict  for  the  plaintiff  was  taken, 
"subject  to  the  opinion  of  the  court,  to  be  heard  at  the 
first  general  term,  with  liberty  to  either  party  to  turn  the 
case  into  a  bill  of  excej^tions  or  general  verdict,"  and 
the  exceptions  were  heard  and  overruled,  and  judgment 
rendered  for  the  plaintiff  on  the  verdict;  held,  not  a 
mistrial.^ 

§  16.  When  a  verdict  is  taken,  subject  to  the  opinion  of 
the  court,  every  inference,  which  a  jury  would  be  justified 
in  drawing  from  the  evidence,  the  court  will  draw,  in 
support  of  the  verdict.^ 

§  17.  Where  the  parties  agreed  upon  the  form  of  a  ver- 
dict and  consented  thereto,  and  in  addition  to  a  general 
verdict  for  the  plaintiff'  they  agreed  to  a  special  finding 
of  certain  facts,  upon  which  questions  of  law  arose ;  such 
general  verdict  must  stand,  unless  the  finding  is  incon- 
Bistent  therewith;  and, though  the  whole  verdict  is  taken 
"  subject  to  the  opinion  of  the  court,"  the  defendant  cau- 

1  Robinson  ?).  Scott,  5  Monr.  278.        ^  Williams  v.  Ins.  Co.,   &c.,   1 

2  City  Bunk   v.   McChesuey,  20    Hilt.  345. 
N.  Y.  (6  Smith)  240. 


of  a  life  interest  held  iininterruptcd  possession  for  a  period  sufTicicnt  to 
create  a  bar  against  the  remainder-man,  with  nothing  to  show  that  it  was 
by  the  authority  and  permission  of  the  remainder-man  or  his  representa- 
tive, finds,  in  effect,  adverse  possession.  Laync  v.  Norris,  16  Gratt.  23G. 
From  a  special  verdict,  that  there  was  an  entry  upon  land  by  a  grantee 
of  a  rent-charge  upon  it,  and  a  holding  by  him  and  those  claiming  under 
him  for  forty-three  years,  the  court  cannot  infer  that  the  original  entry 
was  under  the  right  of  entry  given  by  the  deed,  for  non-payment  of  rent, 
or  that  the  parties  held  adversely.    Turner  v.  Smith,  18  Gratt.  831. 


en.  VIII.]      JURY.      VERDICT   AGAINST   LAW,   ETC.  133 

not  claim  tliat  the  issues  of  fact  were  not  established  by 
the  evidence  in  favor  of  the  plaintiff,  except  so  far  as 
such  finding  may  control  them.  The  finding  agreed  upon 
establishes  the  facts  therein  stated,  and  the  general  ver- 
dict all  other  facts  in  issue,  in  the  plaintifi:''s  favor.^ 

§  17a.  In  debt  upon  a  bond  for  the  purchase-money 
of  land,  it  is  held  that  the  jury  may  give  a  verdict  for 
the  plaintiff,  with  the  condition,  that  no  execution  shall 
issue  until  the  plaintiff  shall  have  removed  an  incum- 
brance from  the  land.^ 

§  17/;.  The  question  being,  whether  a  woman  had,  after 
the  death  of  her  husband,  re-delivered  a  deed,  which  she 
had  signed  and  sealed  with  him  in  his  lifetime,  but  which 
was  invalid  as  to  her,  for  want  of  a  sufficient  certificate 
of  acknowledgment;  the  jury  made  the  deed  part  of  a 
special  verdict,  and  found  specifically  all  that  she  did  and 
said  about  it  after  her  husband's  death,  and,  among  other 
things,  that  she,  together  with  her  husband,  did  "  convey" 
the  land  by  that  deed.  Held,  not  a  finding  that  she  had 
parted  with  her  title,  but  only  that  the  deed,  as  it  is,  was 
executed  by  her  when  it  was  made.^ 

§  18.  Interrogatories  put  by  the  court  to  the  jury,  for  a 
special  verdict,  may  be  leading."  Where  the  language  is 
ambiguous,  it  is  the  duty  of  the  court  to  give  it  such  con- 
struction as  will  make  it  effective.''  Equivocal  terms  will 
be  understood  in  the  sense  most  favorable  to  sustaining  a 
verdict,  if  equally  consistent  with  the  contract  and  the 
circumstances  of  the  case.^ 

§  19.  With  regard  to  verdicts  in  general,  it  is  held  that 
a  verdict,  however  informal,  is  good,  if  the  court  can  un- 

>  Sharp  V.  Whipple,  3  Bosw.  474.  *  Rice  v.  Rice,  6  Ind.  100. 

2  Roland  v.  ^liller.  3  W.  &  S.  390.  ^  Carr  v.  Stevenson,  5  Humph. 

'  Miller  v.  Shackleford,  4  Dana,  559. 

264.  ^  Nye  v.  Maxwell,  14  Verm.  14. 


134  THE    LAW    OF   NEW    TRIALS.  [CU.  VIII. 

derstand  it.'  Verdicts  arc  to  have  a  reasonable  intend- 
ment, and  to  receive  a  reasonable  construction,  and  are 
not  to  be  avoided,  unless  from  necessity.^  If  rendered 
upon  substantial  issues  of  fact,  fairly  presented  by  the 
pleadings,  they  should  not  be  disturbed  on  account  of  mere 
technical  defects.^  So,  where  the  record  is  irregular  and 
confused,  but  shows  a  verdict  to  have  been  rendered,  the 
presumption  will  be  in  favor  of  the  validity.'*  And 
superfluous  matter  in  a  verdict  may  be  disregarded  as 
surplusage.' 

§  20.  The  distinction  is  made,  that  a  verdict  which  is 
so  uncertain,  that  it  cannot  be  clearly  ascertained  whether 
the  jury  intended  to  find  the  issue  or  not,  is  bad.  But  a 
verdict  is  not  bad  for  informality,  if  the  finding  of  the 
matter  in  issue  may  be  concluded  from  it.^  It  is  sufficient 
if  the  verdict  respond  to  the  issue,  though  it  do  not  pursue 
the  very  words.^  Thus  a  verdict  which  finds  the  issue  for 
the  plaintiff',  and  assesses  his  damages,  is  sufficient.^  So  a 
verdict  of  guilty  in  an  action  of  assumpsit,  although  not 
strictly  technical,  may  be  put  in  form  by  the  court,  or  if 
not  objected  to  will  be  held  sufficient.''(«) 

'  Jones  V.  Julian,  12  Ind.  274;        »  Kiggs  «.  Maltby,  2  Mot.  (Kv.) 

McRae  v.   Colclmigh,   2  Ala.  74;  88. 

Longacre    v.  The    State,  2  IIow.         ^  Dixon  ». State,  3  Clarke  (Iowa), 

Miss.    fi;]7;    State  v.  Goodwin,    5  41G. 

Ired.  401  ;  Buttles  v.  Braintree,  14        ^  "Windham  ®.  Williams,  27  3Iiss. 

Verm.  348;    Meade   v.  Smith,  IG  313. 

Conn.  340  ;  Ciiambcrs  v.  The  Peo-        «  Allen  v.  Aldrich,  9  Fost.  63  ; 

])le,  4  Scam.  3.-)l;  Campbell  v.  The  Pettes  v.  Bingham,  10  N.  H.  514. 
Queen,  11  Ad.  .t  Ell.  N.  S.  791);  ^  Patterson  «.  Cook,  8  Port.  G6. 
Vaden  v.  Ellis,  18  Ark.  3r)5.  »  Atlantic  lus.  Co.  v.  Wright,  33 

2  Simmons  v.  Harden,  9  Geo.  543.  111.  4G3. 

9  Parmelec  v.  Smith,  21  111.  G30. 

(a)  In  an  action  for  deceit  in  the  sale  of  a  chattel,  the  jury  returned 
a  verdict  for  a  certain  sum,  adding :  "  believing  the  i)laintifr  to  have  been 
misled  by  the  catalogue."  Hold,  the  verdict  was  general,  and  the  court 
miglit  direct  the  words  to  be  disregarded  in  recording  the  verdict.  Gover 
V.  Turner,  28  ]Md.  000.  In  an  action  for  false  warranty  in  the  sale  of  a 
horse,  the  jury  rendered  a  sealed  verdict,  "that  the  horse  was  lame  other- 


CH.  viil]     jury,     verdict  against  law,  etc.  135 

§  20a.  An  objection  to  tlie  form  of  a  verdict,  where  it 
is  substantially  correct,  cannot  be  first  raised  in  the  court 


wise  than  warranted  on  the  sale ;  that  there  was  a  warranty,  and  that 
the  plaintiff  was  entitled  to  $95  damages."  Held,  in  substance,  a  gene- 
ral verdict  for  $95,  and  properly  received  as  such.  Ross  v.  Mather,  47 
Barb.  582.  "  "We  the  jury  find  for  the  plaintiff  and  assess  his  damages 
at  two  hundred  and  sixty-two  j%°q. — .$262.50.  May  7.  James  Montgo- 
mery, Foreman."  Held  sufScient.  Hall  v.  King,  29  Ind.  205.  A  special 
verdict,  that  the  "defendants  are  entitled  to  the  quartz  lode,  or  ground, 
as  situated  between  their  notices,  .  .  .  and  being  three  hundred  and  fifty 
feet,  more  or  less,"  is  to  be  interpreted  as  giving  the  defendants  all  the 
ground  between  their  notices,  whatever  the  distance.  Gonzalez  v.  Leon, 
31  Cal.  98.  By  agreement  it  was  ordered,  that,  if  the  jury  should  find  a 
verdict  after  adjournment  of  the  court,  they  might  seal  it  and  deliver  it 
to  the  clerk.  They  did  so,  and  then  separated.  The  verdict  was  merely 
"  for  the  plaintiff,"  and  the  jury  were  sent  out  again,  and  returned  a  ver- 
dict fixing  the  amount  of  damages.  Held,  it  was  error  to  enter  judgment 
on  the  second  verdict.  Trout  v.  West,  29  Ind.  51.  In  an  action  upon 
an  account,  the  pleadings  showed  that  there  was  no  controversy  as  to  the 
amount,  but  only  as  to  the  right  of  the  plaintiff  to  recover  at  all.  The  jury 
returned  a  verdict,  "  we  the  jury  find  for  the  plaintiff."  The  court,  at 
the  request  of  the  plaintiff,  and  against  the  objection  of  the  defendant, 
directed  the  jury  to  retire  and  find  the  amount  due,  which  was  done. 
Held,  not  to  be  error.  Lee  v.  Bradway,  25  Iowa,  216.  A  verdict  in  the 
form,  "  we,  the  jury,  believe,"  is  not  objectionable.  Patton  v.  Gregory, 
21  Tex.  513.  Where,  in  a  suit  upon  a  note,  the  only  material  issue  was, 
whether  usury  was  embraced  in  it,  and  the  verdict  was,  "  We  of  the  jury 
find  for  the  plaintiff;"  held,  that  judgment  was  properly  rendered  for  the 
amount  of  the  note  with  interest,  the  provision  of  the  (Ky.)  Code,  that 
the  jury  must  assess  the  amount  of  recovery,  not  applying.  Cooper  v. 
Poston,  1  Duv.  92.  In  an  action  on  a  sheriff's  bond,  a  verdict  "we  find 
for  the  plaintiff,  that  the  condition  of  the  bond  is  broken,  and  assess  his 
damages  at,"  etc.,  is  not  irregular.  Bartlett  v.  Hunt,  17  Wis.  214. 
Where  a  verdict,  in  an  action  under  a  "mill-dam  act,"  finds  the  damages 
the  plaintiff  has  sustained  up  to  the  commencement  of  the  action  at  a 
specified  sum,  and  the  annual  damages  which  he  would  sustain  thereafter 
at  a  certain  other  sum ;  held,  substantially  a  finding  of  the  damages 
which  the  plaintiff  had  sustained  up  to  the  time  of  the  trial,  as  the 
damages  sustained  during  the  pendency  of  the  action  could  be  computed 
on  the  annual  damages.  Newton  v.  Allis,  16  Wis.  197.  In  Louisiana, 
the  article  of  the  Code  which  prescribes  the  form  of  a  verdict  is  direc- 


136  THE    LAW    OF   NEW    TRIALS.  [CII.  VIII. 

abovo.^  ^lorc  especially  where  tlie  objection  might  have 
beeu  remedied  by  the  court  below.' 

§  21.  "With  more  particular  reference  to  the  -pleadings^ 
though  a  verdict  be  not  technically  responsive  to  the 
issues,  yet  if,  in  its  sense  and  legal  effect,  it  makes  a  re- 
sponse to  the  pleadings,  it  is  sufficient.^  And  one  general 
verdict  may  be  a  sufficient  finding  upon  several  issues, 
when  all  of  them  must  necessarily  be  passed  upon,  in 
order  to  such  finding.^  Though  it  is  a  general  rule  that 
the  jury  are  to  answer  all  the  issues,  yet,  if  the  whole 
question  in  the  case  is  settled  by  the  verdict,  it  is  not  to 
be  set  aside,  unless  the  omission  to  find  the  other  issues 
may  in  some  way  prejudice  the  party  complaining.'(rt) 
Thus,  where  several  issues  are  made  up,  if  the  jury  find 
for  the  defendant  on  any  one  of  them,  it  will  be  sufficient; 
and  they  need  not  find  for  the  plaintiff  on  any  of  the 
others,  though  he  would  be  entitled  to  have  them  decided 
in  his  favor  if  it  were  necessary  to  decide  them.^  So, 
where  there  arc  several  material  issues,  a  general  finding 
for  the  plaintiff,  assessing  damages,  &c.,  is  sufficient.^  And 
a  general  verdict  "for  the  defendant,"  though  expressed 
to  be  "on  account  of"  one  of  the  main  issues  in  the  case, 
includes  the  finding,  in  his  favor,  of  every  material  fact 

'  Sclilencker  v.  Risley,  3  Scam.  ^  White  v.  Bailer,  14  Conn.  272; 

483.  Talbott  v.  Jones,  5  Miss.  217. 

2  Bank,  &c.?).  Batty,  4  Scam. 200.  e  -yValker  v.  Taliaferro,  2  Brev. 

3  Lowrcy  v.  Brown,  3  Sneed,  17.  390. 

<  Chcswell  ?'.  Chapman,  42  N.  II.        ^  Street  v.  Colver,  G  Mis.  354. 
47  ;  Talbott  v.  Jones,  .')  AVis.  417 ; 
Agee  V.  Medlock,  25  Ala.  281. 

tory,  and  a  substantial  compliance  with  its  provisions  will  be  snfiicient, 
if  no  objection  is  raised  at  the  trial.  \Vichtrecht  v.  Fassuacht,  17  La. 
An.  166. 

(a)  In  Indiana,  one  good  count  sustains  a  general  verdict.  The  de- 
fendant should  ask  to  have  the  jury  assess  on  that  count  alone;  but 
where  the  record  is  silent  this  is  presumed  to  have  been  done.  Indiana- 
polis, &c.  Railroad  Co.  v.  Tafie,  11  lud.  458. 


CH.  VIII.]       JURY.      VERDICT   AGAINST   LAW,   ETC,  137 

well  pleaded.'  So,  where  the  general  issue  and  a  special 
justificatiou  are  pleaded,  and  a  verdict  is  found  for  the 
plaintiff  on  the  general  issue  which  could  not  have  been 
found  if  the  special  plea  had  been  supported ;  the  omission 
is  matter  of  form  only.^  So,  where  separate  pleas  of  pay- 
ment were  filed  to  separate  counts,  a  general  verdict  for 
the  plaintiff  is  good.^  So,  where  there  are  two  counts,  and 
evidence  given  on  both,  and  a  general  charge  on  the  facts 
applying  to  each  count ;  a  general  verdict  on  both  is  good.^ 
Thus  a  complaint  counted  on  a  note,  and  an  account  stated. 
The  defence  to  the  first  count  was  usury,  alterations,  &c., 
and  to  the  second,  that  the  account  had  been  paid  by  the 
note.  The  verdict  was  "for  the  plaintiff  on  the  counting 
$166.50,  without  interest  on  said  claim,  regarding  said 
note  invalid."  The  evidence  was  not  on  the  record 
on  appeal.  Held,  the  verdict  was  substantially  for  the 
defendant  on  the  first,  and  for  the  plaintiff  on  the  second 
count,  and,  though  informal,  was  good.* 

§  21a.  Where  a  verdict  which  is  decisive  of  the  case 
is  found  on  one  or  more  of  several  issues,  and  the  jury 
cannot  agree  as  to  another  issue,  the  party  prevailing  may 
waive  the  other  issue,  or  consent  that  a  verdict  be  entered 
thereon  against  him.^  So,  if  a  declaration  in  trespass  con- 
tain two  counts  for  the  same  trespass,  and  the  defendant 
plead  the  general  issue  to  both,  and  a  special  plea  in  bar 
to  one  of  them,  and  a  verdict  be  found  for  him  on  the 
special  plea ;  he  is  entitled  to  a  verdict  on  the  general 
issue  likewise.^ 

§  21b.  Where  special  issues  are  submitted  to  the  jury, 
it  is  enough  if  they  find  upon  those  on  which,  regardless 

»  Hamiltou  v.  Eice,  15  Tex.  383.        ^  Collins  v.  Makepeace,  13  Ind. 

2  Browning  v.  Skillman,  4  Zabr.     448. 

351;  19  Pick.  25.  ^  Sutton  v.  Dana,  1  Met.  383. 

3  Dillard  v.  Noel,  2  Pike,  449.  '  Curl  v.  Lowell,  19  Pick.  25  ;  4 
*  Morchead  v.  Brown,  G  Jones,     Zabr.  351. 

367.      See   Goodman    v.    Gay,   15 
Penn.  188. 


138  THE    LAAV    OF   NEW    TRIALS.  [Cll.  VIII. 

of  the  finding  on  the  other,  judgment  can  staud.^  And 
where  there  are  several  counts  for  tlie  same  cause,  one  only  of 
which  is  good,  and  a  general  verdict  is  found  for  the  plain- 
tiff;  judgment  will  not  be  arrested,  hut  the  verdict  will 
be  applied  to  the  good  count.^  So,  where,  on  a  feigned 
issue,  there  are  several  counts,  and  evidence  is  given  on 
one  only,  the  court  will  order  the  verdict  to  be  rendered 
on  that  count.3  And  where  the  attention  of  the  jury  is 
directed  to  but  one  count,  a  general  verdict  will  be  pre- 
sumed to  be  on  that  count.'(ft) 

§  22.  A  verdict  in  figures,  with  the  symbolical  prefix 
($)  denoting  dollars,  is  good,  in  an  action  of  tort.^  So  a 
verdict  for  "seven  hundred  dollars,  the  amount  of  the 
note  sued  on,  with  legal  interest  from  the  maturity  of  the 
note,"  is  sufficiently  certain.^     So,  where  the  plaintiff,  in 

•  (rBricn  v.  Hilburn,  22    Tex.  ^  Rhoads  w.  Hoopes,  2  Miles,  51. 

616,  ''  Jones  v.  Cooke,  -5  Dev.  112. 

2  Smith  V.  Cleveland,  G  IMet.  332;  ^  Maysou  v.  Slieppard,  12  Rich. 

Nelson  v.   Emerson,  1  Brev.   48 ;  254. 

Bridi^rc  Co.  v.  Williams,  9  Dana,  ^  Parker  v.  Leman,  10  Tex.  116. 
403;  "state  v.  Pace,  9  Rich.  355. 


(a)  The  court  will  not  render  a  decree  upon  a  special  verdict,  which  is 
not  responsive  to  the  pleadings,  and  is  incomplete  with  reference  to  the 
objects  of  the  suit.  Thompson  v.  Tinnin,  25  Tex.  (Supp.)  5G.  AVhere 
several  issues  were  presented  to  the  jury,  and  they  found  the  "  issue"  for 
the  plaintiif;  held,  not  error.  The  court  below  might  have  changed 
"issue"  into  "issues."  Laber  v.  Cooper,  7  Wall.  565.  Where,  during 
the  trial,  the  plaintiff  only  claimed  to  recover  on  one  count,  to  which  all 
his  evidence  was  applicable ;  held,  a  general  verdict  might  be  applied  to 
such  count,  although  others  were  defective.  Small  v.  Rogers,  46  N.  H. 
176.  If  a  jury  agree  to  a  verdict  upon  some  or  several  entirely  separate 
and  distinct  issues,  but  fail  to  agree  upon  others,  and  thereupon  seal  their 
verdict  and  separate  without  permission ;  such  separation,  though  irre- 
gular, will  not  affect  their  finding  on  the  former  issues.  Vennard  v. 
McConnell,  11  Allen,  555.  Where  certain  issues  are  submitted  to  the 
jury,  and  a  verdict  is  returned  "  for  the  defendant,"  such  verdict  is  suffi- 
cient, if  from  the  nature  of  the  issues  it  is  certain  that  the  jury  must 
have  found  for  the  defendant  upon  all  of  them,  in  order  to  render  such 
verdict.     Browne  v.  Browne,  22  Md.  103. 


CH.  VIII.]      JURY.      VERDICT   AGAINST   LAW,   ETC. 


139 


an  action  for  a  wager  on  a  horse-race,  averred  that  so 
much  money  and  property  was  deposited  with  stake- 
holders, and  the  jury  found  "for  the  plaintiff  the  amount 
of  money  and  property  in  the  hands  of"  the  stakeholders; 
held,  the  verdict  was  made  sufficiently  certain  by  refe- 
rence to  the  pleadings.^  So,  where,  in  an  action  of  forcible 
entry  and  detainer,  the  jury  returned  a  verdict,  which? 
though  informal  in  omitting  to  state  the  result,  was  yet 
sufficient  to  enable  the  court  to  ascertain  it  by  a  simple 
operation  in  arithmetic;  held,  the  judgment  ought  to  be 
affirmed.2  j^^^^  where  a  verdict  is  for  "  principal,  interest, 
and  costs,  and  12i  per  cent,  damages,"  it  will  be  presumed 
that  the  "principal"  meant  is  the  principal  claimed  in  the 
declaration;  which  presumption  is  strengthened,  if  judg- 
ment is  entered  up  for  that  sum  as  principal  without  ex- 
ception by  the  defendant.^  So,  where,  in  an  action  on  a 
note,  the  jury  "found  for  the  plaintiff  the  amount  of  the 
note  and  interest ;"  and  the  clerk  assessed  the  damages, 
and  entered  judgment  by  order  of  the  court:  held,  there 
was  no  fatal  error.* 

§  22a.  "Where  several  parties,  over  whose  respective 
lands  a  highway  had  been  laid  out  by  the  county  com- 
missioners, applied  for  a  jury  to  make  alterations  in  the 
location,  and  to  reassess  their  damages,  and  all  the  cases 
were  submitted  to  the  same  jury  at  the  same  time,  and  a 
verdict  was  returned  confirming  the  location  over  the 
lands  of  some  of  the  parties,  and  assessing  their  damages 
severally,  and  stating  that,  as  to  another  part  of  the  loca- 
tion, the  jury  could  not  agree ;  held,  the  verdict  was  a 
several  verdict  in  each  case,  and,  accordingly,  that  it 
ought  to  be  received  and  accepted  in  each  case  in  which 
the  damages  were  assessed,  and  the  case  in  which  the  jury 

>  Galbrcath  v.  Atkinson,  15  Tex.        »  Phillips  v.  Behn,  19  Geo.  298. 
21.  ■*  McGregor  v.  Armill,  2  Clarke 

2  Gibson  v.  Lewis,  27  Mis.  532.       (Iowa),  30. 


140  THE    LAW    OF   NEW    TRIALS.  [CII.  VIII. 

could  not  agree  ought  to  be  submitted  to  a  new  juiy.'  So, 
in  an  action  against  two  defendants,  a  verdict  "  in  favor 
of  the  defendant"  was  held  to  be  a  iinding  for  both  de- 
fendants.2  ^^fi  where,  in  an  action  against  two,  the  plea 
of  the  statute  of  limitations  and  the  replication  arc  joint, 
the  verdict  for  one  and  against  the  other  defendant  will 
be  supported. 3  So  a  verdict  by  the  jury  in  favor  of  the 
plaintift',  where  there  were  more  plaintiffs  than  one,  and 
where  the  record  shows  that  the  jury  were  impanelled  to 
try  the  issue  in  the  case,  is  sufficient.'' 

§  226.  A  verdict  in  a  chancery  suit,  which  determines 
that  the  complainant  has  no  title  to  the  premises  in  con- 
troversy, is  ordinarily  good.* 

§  22c.  Inasmuch  as  the  day  of  trial  is  matter  of  record, 
and  the  rate  of  interest  fixed  by  statute;  a  verdict  "for 
the  plaint ift",  a  judgment  for  the  amount  due  on  said  note 
with  legal  interest  less  $51,  with  interest  on  the  same 
from  January,  1856,"  is  sufficiently  certain."  Or  a  verdict 
for  a  debt  claimed  in  the  declaration,  wdth  interest,  &c., 
subject  to  a  credit  for  a  specified  sum,  paid  at  a  specified 
date.^  So  a  verdict  for  a  specified  sum  of  money,  "  with 
interest  thereon  from  the  16th  of  February,  1836,"  is  not 
void  for  uncertainty,  either  as  to  the  principal  sum  or  the 
interest,  but  the  plaintift'  is  entitled  to  sign  judgment  for 
both,  computing  the  interest  according  to  the  verdict, 
even  if  the  demand  be  unliquidated.'''  So  a  verdict,  "  we 
of  the  jury  find  for  the  plaintift'  the  debt  in  the  declara- 
tion mentioned  to  be  discharged  by  payment  of  the  sum," 
&c.,  is  sufficient  in  substance  and  certainty.^ 

•  Lanosborough  v.  Bcrksliire,  22        <=  Darden  v.  Mathews,   22  Tex. 
Pick.  278.  320. 

'  Porter  v.  Cotney,  3  Ala.  314.  '  Barrett  v.  Wills,  4  Leigh,  114. 

3  Ivey  V.  Gamble,  7  Port.  54o.  ^  Bank  v.  Bowie,  1  :McMullan, 

*  Henrv  v.  llalsey,  r,  S.  6c  M.  073.     429. 

5  McUaniels.  Mary gold,2  Clarke,        »  Maulding   v.  Rigby,   1    How. 
500.  Miss.  579. 


CH.  VIII.]      JURY.      VERDICT   AGAINST   LAW,   ETC.  141 

§  23.  Where  a  verdict  was  inadvertently  rendered,  after 
an  injunction  to  stay  the  suit;  the  court  refused  to  set 
aside  the  verdict,  but  ordered  it  not  to  be  enforced,  until 
the  injunction  should  be  dissolved.^ 

§  24.  If  a  judgment  is  entered  upon  a  verdict,  without 
appeal  or  motion  in  arrest,  the  verdict  warrants  the  judg- 
ment, although  not  signed  by  the  foreman.-(a) 

•  Kile  v.  Thompson,  26  Geo.  352.        2  Harris  v.  Bardeu,  24  Geo.  73. 

(a)  In  the  Circuit  Court  of  Illinois,  the  jurors  need  not  sign  their  ver- 
dict, but  only  where  the  trial  is  before  a  ministerial  of&cer.  Harrison  v. 
Singleton,  2  Scam.  21.  Under  the  new  code  of  Kentucky,  a  verdict  is 
sufiBciently  certain,  which  finds  for  the  plaintifif  the  debt  mentioned  in  the 
petition.  Braunin  v.  Force,  12  B.  Mon.  506.  In  Louisiana,  when  the 
jury  find  for  the  plaintiff  "  the  full  amount  claimed,"  the  amount  must 
be  ascertained  from  the  allegations  and  prayer  of  the  petition.  Newton 
V.  Kerr,  14  La.  An.  704.  In  Kentucky,  the  court  is  authorized  by  the 
Civil  Code,  §  257,  to  impanel  a  jury  to  inquire  into  the  fact  whether  the 
claimant  was  owner,  and  entitled  to  possession,  of  the  property,  at  the 
time  an  attachment  was  levied  ;  and  a  verdict  in  his  favor,  in  response  to 
that  inquiry,  must  be  rgarded  as  relating  to  that  period,  although  no  time 
be  specified.  Schwein  v.  Sims,  2  Met.  (Ky.)  209.  In  Indiana,  where  a 
special  fiding  covers  the  issue,  but  omits  to  find  a  fact  rendered  material 
by  the  evidence,  and  on  which  there  is  a  conflict  of  testimony ;  the  proper 
remedy  is  by  motion  for  a  new  trial,  not  for  a  venire  cle  novo.  Schmitz 
V.  Lauferty,  29  lud.  400.  If  a  verdict  contains  but  one  finding,  where 
the  pleadings  present  other  necessary  questions  of  fact,  and  the  finding 
is  such  that  judgment  cannot  be  rendered  irrespective  of  the  other  mat- 
ters ;  it  is  a  mistrial.  People  v.  Doesbury,  17  Mich.  135.  In  Maryland, 
a  transcript,  sent  to  the  orphans'  court,  of  proceedings  in  the  circuit 
court,  set  forth,  that  the  first  verdict  had  been  set  aside  and  a  new  trial 
granted  by  the  circuit  court,  in  which  a  second  verdict  was  rendered,  but 
the  certificate  of  the  judge  referred  only  to  the  last  verdict.  Held,  the 
first  verdict  could  not  be  considered  by  the  orphans'  court,  and  there- 
fore the  certificate  was  right.  Waters  v.  Waters,  28  Md.  11.  In  ren- 
dering judgment  upon  a  special  verdict,  the  court  must  be  confined  to 
the  verdict,  and  cannot  refer  to  other  facts  upon  the  record  for  the  pur- 
pose of  aiding  the  verdict.  Kuhlman  i'.  Medliuka,  29  Tex.  385.  No 
judgment  will  be  rendered  upon  a  verdict  which  cannot  be  made  certain 
without  looking  out  of  the  record  to  the  evidence.    As  where  the  verdict 


142  THE    LAW    OP   NEW    TRIALS.  [CII.  VIII. 

§  25.  AVhcrc  a  bill  was  liled  by  A.  and  B.  bis  wife,  to 
recover  certain  shares,  in  right  of  the  wife,  the  marriage 
being  denied  by  the  answer;  and  the  jury  found  the  fol- 
lowing verdict:  "We,  the  jury,  find  and  decree,  that  the 
complainant  B.,  in  her  own  right  and  for  her  own  use,  do 
recover  of  the  defendant  the  negro  slaves,  C,  D.,  &c.:" 
held,  on  a  motion  in  arrest  of  judgment,  that  the  legal 
efiect  of  the  verdict  was  in  favor  of  the  marriage.^ 

'  Simmons  v.  Rarden,  9  Geo.  543. 


in  an  action  of  trespass  to  try  title  found  for  the  plaintiff  "  the  land  de- 
scribed ill  the  petition,  less  7G7^  acres,  as  described  in  the  deed  read  in 
evidence  from  B.  F.  Hopper  to  C.  M.  Adams."     Smith  v.  Tucker,  25 
Tex.  594.     In  a  late  case  in  Pennsylvania,  the  rule  of  law  is  thus  stated, 
per  Williams,  J.     "  A  special  verdict  must  find  all  the  essential  facts  in 
the  case,  and  cannot  be  aided  by  intendment  or  a  reference  to  extrinsic 
facts  appearing  upon  the  record.     Wallingford  v.  Dunlap,  2  Harris,  31 ; 
Sewall  V.  Glidden,  1  Ala.  52;  Tunnell  v.  Watson,  2  Munf.  283-;  Lee  v. 
Campbell,  4  Port.  198 ;  Allen  v.  Folger,  6  Rich.  14.     And  what  is  not 
found  by  a  special  verdict  will  be  taken  not  to  exist.     Thayer  v.  Society 
of  the  United  Brethren,  8  Harris,  60  ;  Berks  Co.  v.  Jones,  9  Harris,  416. 
And  this  is  so,  although  the  circumstances  stated  may  be  sufficient  to 
warrant  an  inference  or  presumption  of  the  existence  of  the  matter  omit- 
ted.    Jones  V.  State,  2  Swan.  399.      The  court  is  confined  to  the  facts 
found  in  a  special  verdict,  and  cannot  supply  the  want  thereof  by  any 
argument  or  implication  from  what  is  expressly  found  ;  Cronsillat  v.  Ball, 
3  Ycates,  386;  Ingersoll  v.  Blanchard,  2   ib.  545.      And  if  the  spe- 
cial verdict  is  defective  or  uncertain,  no  judgment  can  be  entered  upon 
it,  but  it  must  be  set  aside,  and  a  venire  de  novo  awarded.     Whitesides 
V.  Russell,  8  W.  &  S.  47 ;  Peterson  v.  United  States,  2  Wash.  C.  C.  R. 
39 ;  State  v.  Duncan,  2  McCord,  129.     The  bond  upon  which  the  suit 
was  brought  was  given  to  indemnify  Francis  Stocker,  the  plaintiff  below, 
for  levying  upon  and  selling  personal  property  upon  an  execution  which 
had  come  into  his  hands  as  sheriff.     The  special  verdict  finds  '  that  an 
action  was  brought  against  Francis  Stocker,  sheriff  of  Carbon  County, 
and  a  recovery  had  against  him,  which,  with  costs  and  interest,  amounts 
to  more  than  $3000,'  the  penalty  of  the  bond.     But  it  does  not  find  that 
the  action  was  brought  and  the  recovery  had  for  levying  upon  and  selling 
the  goods  mentioned  and  described  in  the  bond,  and  for  which  it  was 
o-ivcn  as  indemnity,  and  we  cannot  intend  or  infer  that  such  was  the  fact^ 
Jud""ment  reversed,  special  verdict  set  aside,  and  a  venire  facias  de  novo 
awarded."     Loew  v.  Stocker,  Leg.  lutell.  1869. 


en.  VIII.]       JURY.      VERDICT    AGAINST    LAW,   ETC.  143 

§  26.  But  there  are  numerous  cases,  where  the  improper 
form  of  a  verdict  has  been  held  fatal  to  its  validity.^  A 
verdict,  obviously  imperfect  and  uncertain  on  its  face, 
cannot  be  supported  and  must  be  set  aside.'^  So  if  no 
judgment  can  be  rendered,  in  consequence  of  the  imper- 
fection of  the  verdict.^ 

§  26a.  A  verdict  must  respond  to  the  issue  made  by  the 
pleadings.  Hence  a  verdict,  that  the  jury  agree  that  the 
plaintiff  pay  the  costs,  is  bad.'*  So  where,  in  an  action  on 
a  note  payable  in  stock,  the  defendant  pleaded  payment, 
and  the  jury  found  specially  that  he  had  tendered  the 
stock,  &c. ;  held,  the  verdict  was  invalid,  and  no  valid 
judgment  could  be  rendered  thereon.^  So,  in  a  suit  for 
shooting  mules,  the  defendant  pleaded  that  the  mules  had 
broken  into  his  inclosure,  and  were  destrojang  his  crops, 
&c.  The  jury  found  "the  damages  to  be  equal,  and  that 
each  party  pay  equal  proportions  of  the  costs  incurred, 
and  go  out  of  court."  Held,  no  judgment  could  be  ren- 
dered.^ So,  where  the  jury  found  only  an  agreement  of  the 
parties,  not  in  issue,  that  the  matters  in  controversy  were 
not  to  be  determined  in  the  court  below,  until  after  the 
appellate  court  should  have  decided  the  question  of  title 
in  favor  of  the  plaintiff;  held,  not  a  legal  verdict,  upon 
which  the  court  below  could  give  final  judgment ;  and 
that  the  acquiescence  of  the  parties  in  such  verdict,  both 
in  the  court  below  and  in  the  appellate  court,  did  not  cure 
the  objection,  or  authorize  the  latter  court  to  proceed  to 
the  disposition  of  the  case,  as  contemplated  in  the  agree- 
ment.^   So  a  verdict  on  a  count  alleging  a  wrongful  taking 

1  Lusk  V.  Miles,  1  Brev.  17;  ker  «.  Moore,  29  Mis.  218;  16  Tex. 
Nixon  V.  Bullock,  9  Yerg.  414;  18;  3  ib.  397.  See  Duval  v. 
Barnard  ■».  Young,  5  Humph.  100;  Malone,  14  Gratt.  24;  Woods  v. 
Tuttle  V.  Brown,  10  Cusli,  2G3;  Hynes,  1  Scam.  103;  Moody  v. 
Watts  V.  Greenlee,  2  Dev.  87.  Keener,  7  Port.  218  ;    Spurlin  v. 

2  Heyward  v.  Bennett,  3  Brev.  Rutherford,  2  Mur.  3G0. 

113.  5  Barker    v.    Brink,    5    Clarke 

3  Boxley   v.   Collins,   4   Blackf.     (Iowa),  481. 

820.  6  Ford  v.  Taggart,  4  Tex.  493. 

*  Hall  V.  York,  16  Tex.  18;  Par-        '  Phillips  v.  Hill,  3  Tex.  397. 


144  TUE    LAAV    OF   NEW    TRIALS.  [CII.  VIII. 

of  tlio  plaintiff's  goods,  not  saying  with  force,  and  selling 
them,  &c.,  is  bad.^  Or  a  verdict  in  trover  "that  the  de- 
fendant does  detain."^  So,  where  the  plaintiff  charged  an 
unlawful  taking  and  detaining  of  his  property;  and  the 
defendant  denied  the  wrongful  taking,  and  affirmed  a 
lawful  delivery  to  the  plaintiff;  and  the  jury  found  a 
wrongful  detainino;:  held  insufficient.^  So  in  an  action 
for  goods  lost,  against  a  railroad,  when  the  jury  fail  to 
find  whether  the  loss  occurred  before  or  after  the  arrival 
of  the  goods  at  the  warehouse  of  the  company,  and  there 
is  uo  proof  of  want  of  ordinary  care.^  And  where  the 
jury  do  not  respond  to  all  the  issues  on  the  record,  their 
verdict  is  defective,  and  no  judgment  can  be  rendered  on 
it.^  Thus  where  there  were  several  counts,  and  a  jury 
found  for  the  defendant  on  all  but  one,  and  for  the  plain- 
tiff on  that ;  held,  though  the  evidence  showed  a  good 
cause  of  action,  yet,  as  it  was  inapplicable  to  the  count 
on  which  the  jury  had  placed  their  verdict,  the  verdict 
could  not  be  sustained.^  So  a  verdict  is  bad,  which 
responds  to  but  one  of  the  pleas  filed.^  Whether  the 
jury  find  a  general  or  a  special  verdict,  it  is  their  duty  to 
decide  the  very  point  in  issue ;  and  although  the  court  in 
which  it  is  tried  may  give  form  to  a  general  finding,  so 
as  to  make  it  harmonious  with  the  issue,  yet  if  it  appear 
to  that  court,  or  to  the  appellate  court,  that  the  finding 
is  difterent  from  the  issue  or  is  confined  only  to  a  part  of 
the  matter  in  issue;  no  judgment  can  be  rendered  on  the 
verdict ;  and  this  principle  applies  equally  to  a  plea  vary- 
ing from  the  substance  of  the  declaration.^(«)     And  the 

1  Wickliffc  1).  Saudcrs,  G  Mour.  s  Vines®.  Brownrigg,  2  Dev.537. 
29G.  ^  Horscly  v.  Braucli,  1  Humph. 

2  Toulmin  v.  Lcsosne,  2  Ala.  359.     199. 

3  Allison  V.  Darton,  24  i\Iis.  343.        '  Carr  v.  Stevenson,  5  Humph. 
*  Jackson  v.  Sacramento,  23  Cal.     559. 

268.  ^  Garland  v.  Davis,  4  How.  131. 

(a)  Where  the  jury  find  for  the  plaintiff  on  the  first  of  two  issues,  and 
it  appears  from  the  pleadings,  that,  in  order  to  such  a  verdict,  they  must 
have  found  for  him  on  the  second,  the  court  will  infer  that  they  did  thus 
find,  and  give  judgment  accordingly.     Pearco  v.  Bell,  21  Tex.  688. 


CII.  VIII.]       JURY.       VERDICT    AGAINST   LAW,   ETC.  145 

finding  of  the  court.,  in  a  case  where  no  jury  was  demanded, 
is  equivalent  to  the  verdict  of  a  jury,  and  cannot  he  en- 
larged by  intendment.^  So,  "  if  the  point  on  which  the 
verdict  is  given  is  so  uncertain  that  it  cannot  be  clearly 
ascertained,  whether  the  jury  mean  to  find  the  issue  or 
not,  it  cannot  be  helped  by  intendment."^  But  where,  in 
an  action  against  two  defendants,  the  plea  alleged  that 
the  promises  were  made  by  them  and  T.,  and  not  by  them 
alone ;  and  the  replication,  that  the  promises  were  made 
by  the  defendants  alone ;  and  the  verdict  found  that  the 
defendants  "  did  promise  in  manner,  &c.,  as  the  plaintift" 
has  declared:"  held,  if  the  verdict  failed  to  find  the  pre- 
cise point  of  the  issue,  "  the  finding  of  the  matter  in  issue 
might  be  concluded  out  of  it,"  and  therefore  it  was  suffi- 
cieut.^(«) 

§  27.  In  Texas,  in  a  suit  on  open  account,  or  for  an  un- 
liquidated demand,  a  general  verdict  is  of  doubtful  vali- 
dity, especially  before  a  justice  of  the  peace ;  and  will  not 
support  a  judgment.^  So  with  a  verdict  for  the  "full 
amount  specified  in  the  promissory  notes  adduced  in  the 

'  Heeron  v.  Beckwith,  1  Wis.  17.        '  Chase  «.  Deming,  42  N.  H.  274. 
2  Per  Bell,  C.  J.,  Chase  v.  Dem-        *  Harrell  v.  Babb,  19  Tex.  148. 
ing,  42  N.  H.  281. 

(a)  When  a  joint  verdict  is  rendered  against  parties  improperly  joined, 
there  must  be  a  new  trial,  as  separate  judgments  cannot  be  rendered. 
The  judgment  must  follow  the  verdict.  McVean  v.  Scott,  46  Barb.  379. 
Where  there  are  several  defendants,  each  of  whom  pleads  separate  de- 
fences, upon  which  issues  are  joined,  and  a  second  trial  is  taken  under 
the  (Ohio)  Code  by  one  of  the  defendants ;  the  only  issues  then  for  trial 
are  those  between  the  plaintiff  and  such  defendant.  It  seems,  that,  if 
such  defendant's  defence  goes  no  farther  than  to  exonerate  himself  from 
liability,  the  liability  of  the  others  will  remain  unaffected  by  the  result 
of  the  second  trial.  But  if  the  defence  goes  to  the  plaintiff's  right  to 
recover  against  any  of  the  defendants,  it  will,  so  far  as  it  is  established, 
inure  to  the  benefit  of  the  other  defendants  as  fully  as  it  would  have  done 
upon  the  first  trial,  had  they  been  in  default.  Sprague  v.  Childs,  16  Ohio 
St.  107. 

10 


146  THE    LAW    OF    NEW    TRIALS.  [CII    VIII. 

case."^  So  a  verdict  for  the  plaintiff,  in  assumpsit,  with- 
out assessing  damages,  is  erroneous.^  Or  a  verdict  "  upon 
tht'ir  oaths  do  say  $418  75  (four  hundred  and  eighteen 
(hollars  and  seventy-live  cents). "^  Or  a  "verdict  in  favor 
of  i)haintiff.""'  And,  as  we  have  seen  (§  26a),  the  verdict 
must  comi)relicnd  the  whole  issue.  AVhere  the  jury  ex- 
press their  moaning  in  an  informal  manner,  the  court  will 
work  the  verdict  into  shape,  and  make  it  serve.  Other- 
wise, where  the  jury  as  to  part  of  the  issue  fail  to  express 
any  opinion  at  all.^  So  a  judgment,  that  the  plaintiff 
recover  of  the  defendant,  "according  to  the  provisions  of 
the  act  of  Assemhly  in  such  case  made  and  provided,  the 
sum  of,  &c.,''  is  informal  and  uncertain,  and  will  he  set 
aside,  and  the  cause  remanded.^  So,  where,  in  an  action 
on  contract,  the  jury  are  sworn  tarn  ad  triandum  quam  ad 
inquirendum^  it  is  their  duty,  if  they  find  for  the  plaintiff, 
to  assess  entire  damages  against  the  defendants,  and  it  is 
error  to  receive  a  separate  verdict  against  each  defendant.^ 
And  wdiere  there  are  two  plaintiffs,  the  jury  cannot  find 
against  one  and  in  favor  of  the  other.**  Or,  in  detinue 
for  eight  slaves,  a  verdict  "  for  the  plaintiff",  and  assess  the 
value  of  the  slaves  su-ed  for  as  follows,"  &c.,  naming  all  the 
slaves  hut  one.^  So,  where  the  plaintiff"  claimed  title  under 
the  hushand,  and  the  defendant  under  the  commimity,  and 
the  evidence  show^ed,  that  the  consideration  paid  for  the 
land  in  controversy  consisted  of  a  slave  and  a  yoke  of 
oxen,  of  a  certain  value  respectively;  the  jury  found  a 
special  verdict,  that  the  land  was  paid  for  hy  a  slave,  who 
was  the  separate  property  of  the  wife,  and  a  yoke  of  oxen, 
the  property  of  the  community,  hut  w^ithout  finding  their 
respective  value.     Held,  the  court  had  no  power  to  look 

»  Mays  V.  Lowis,  4  Tex.  38.  ^  Harman  v.  Childress,  3  Yerg. 

2  Ames  V.  e^loat,  W'ri->;ht,  577.         327. 

3  Knox  V.  15reed,  12  111.  (Jl.  ^  Day  v.  Brawley,  1  Pcnii.  439. 

«  Hampton  i).  Watterston,  14  La.        ^  i^uckhanan    v.    Gamble,    Geo. 
An   239.  Deeis.  Part  I.  156. 

5  Wood  V.  McGuire,  17  Geo.  3G1.         ^  Witliek  v.  Traun,  27  Ala.  503  ; 

Trauu  v.  Wittick,  ib.  570. 


en.  VIII.]       JURY.      VERDICT    AGAINST    LAW,   ETC.  147 

at  the  testimony,  though  not  conflicting,  in  order  to  fix 
the  value  and  make  up  the  decree,  but  there  must  be  a 
new  triah^ 

§  27a.  In  reference  to  criminal  cases,  a  general  verdict 
is  good,  where  there  is  one  good  count  in  the  indictment, 
to  which  the  evidence  applies.^  And  a  verdict  of  "  guilty 
on  the  first  charge,"  there  being  more  than  one  count,  will 
be  considered  as  a  verdict  of  guilty  on  the  first  count,  and 
not  guilty  on  the  others.^  So  a  verdict  is  sufficient,  if  the 
proper  judgment  to  be  rendered  upon  it  can  be  pleaded  in 
bar  of  another  indictment  for  the  same  cause.*  But,  where 
the  facts  found  by  the  verdict  are  so  defective,  that  no 
judgment  can  be  rendered  upon  it,  an  inferior  court  may 
set  it  aside  and  award  a  venire  de  novo.\a) 

§  276.  A  verdict  which  does  not  pass  distinctly  upon  a 
claim  of  the  defendant  is  bad.^  Or,  in  an  action  of  tort, 
finding  one  defendant  guilty,  not  ascertaining  which,  and 
nothing  as  to  the  other.'^  Or  a  verdict  "  for  the  amount 
of  the  note  less  the  credits,  and  that  the  note  was  for  the 
land  set  out  in  plaintiff's  petition ;"  where  no  land  is  set 
out  in  the  petition,  which  only  refers  to  a  deed  as  intended 
to  be  oflered  in  evidence.*(6) 

'  Claiborne  v.  Tanner,  18  Tex.  ^  Lawrence    v.  The    People,    1 

68.  Scam.    414.      See    Kirby    v.    The 

2  Poole  V.  The  Slate,  3  Brev.  416.  State,  7  Ycrj?.  259. 

3  Nabors  v.  The  State,  6  Ala.  200.  s  Collins  w^Graves,  13  La.  An.  95. 
1  Chambers    v.    The    People,   4  ^  Richards  v.  Sperry,  7  Wis.  219. 

Scam.  351.  ^  Brown  ».  Horless,  22  Tex.  645 . 

(a)  In  Tennessee,  where  the  defendant  was  indicted  for  maliciously 
stabbing,  and  the  jury  found  him  "not  guilty  of  stabbing,  but  guilty  of 
an  assault  and  battery;"  it  was  held  that  no  judgment  could  be  pro- 
nounced against  him.     The  State  v.  Valentine,  6  Yerg.  533. 

(&)  AVhere  it  is  found  that  hay  alleged  to  have  been  converted  by  the 
defendant  to  his  own  use  was  worth  twenty  dollars  per  ton,  but  there  is 
no  finding  as  to  the  number  of  tons  converted,  the  plaintiff  is  not  enti- 
tled to  a  judgment.  Troy  v.  Clarke,  30  Cal.  419.  Under  the  (N.  C.) 
ordinance  of  October  18,  1865,  and  the  acts  of  1866,  c.  38,  39,  money 


148  THE    LAW    OF    NEW    TRIALS,  [CIL  VIII. 

§  28.  If  a  verdict  be  wurraiited  ])y  the  evidence,  it  is 
of  no  importance  that  some  of  the  jurors  mistook  or  did 
not  understand  the  whole  of  it,  or  did  not  know  that 
their  verdict  was  conclusive,  or  how  it  would  affect  the 
judgment.^ 

§  29.  An  inconsistent  verdict  will  be  set  aside.^  But 
where  a  verdict  taken  together  is  inconsistent  and  re- 
pugnant in  itself,  this  is  no  ground  for  rendering  a  judg- 
ment for  the  party  against  whom  the  verdict  is  found. 
It  only  shows  a  mis-trial,  and  the  case  will  be  sent  back 
to  another  hearing.^ 

§  30.  A  verdict  may  be  amended  in  form,  conformably 
with  the  manifest  intent  of  the  jury,  and,  as  will  be  seen, 

1  Tucker  v.  South  Kingstown,  5  2  ]\iitclicll  v.  Printup,  27  Geo. 
K.  I.  558.  469. 

3  Potter  V.  Hiscox,  30  Conn.  519. 


contracts  are  presumed  to  be  solvable  in  Confederate  money,  and  the 
value  thereof  must  be  estimated  by  the  jury  in  coin,  according  to  the 
legislative  scale,  and  then  the  depreciation  of  United  States  treasury 
notes  must  be  added  to  such  nominal  amount  of  coin.     The  legislative 
scale  is  only  applicable  to  contracts  where  Confederate  money  was  the 
consideration.     In  all  other  kinds  of  contracts,  the  value  of  the  property 
or  other  consideration  may  be  shown  in  evidence,  and  the  jury  must  esti- 
mate such  value  in  United  States  treasury  notes.     Robeson  v.  Brown,  63 
N.  C.  554.    The  refusal  of  the  court,  to  require  the  jury  to  return  a  special 
finding  upon  an  immaterial  fact  is  not  erroneous.    Bonham  v.  Iowa,  25 
Iowa,  328.     A  party,  requiring  a  finding  upon  any  particular  fact  at 
issue,  should  specify  the  point,  without  dictating  the  terms  of  the  finding. 
Miller  v.  Stcen,  30  (!al.  402.     A  jury  cannot  properly  award  costs  ;  but, 
if  they  do,  it  will  not  affect  the  residue  of  the  verdict,  if  otherwise  legal, 
and  the  part  relating  to  costs  will  be  rejected  as  surplusage.     Tucker  v. 
Cochran,  47  N.  H.  54.     In  an  action  of  debt,  if  the  petition  sets  forth 
two  notes,  the  statement  of  each  debt  may  bo  considered  as  amounting 
to  a  several  count,  though  one  promise  is  alleged  in  consideration  of  both 
debts,  and,  on  a  plea  answering  fully  each  count  or  cause  of  action,  the 
findin",  if  sustained  by  the  proof,  may  be  for  the  plaintiff  on  one  count, 
and  for  the  defendant  on  the  other.     Uangcr  v.  Uodge,  24  Ark.  205. 


CH.  VIII.]      JURY.      VERDICT    AGAINST    LAW,    ETC.  149 

this  may  be  clone  in  somewhat  various  ways.'(«)  Thus 
a  verdict  incorrectly  recorded  may  be  amended  by  the 
court.^  So  the  jury  may  be  sent  back  with  instructions 
to  put  their  verdict  in  form,  or  make  it  more  certain.^ 

•   Tliomae    v.   Znslila,   25    Tex.  ncy,  8  Dcv.  43;  Russell  «.  Wheeler, 

225;   Corbett  v.   Gilbert,  24   Geo.  1  Hemp.  3. 

454;   Montgomery  v.  Tillotson,  1        2  Iven's  Appeal,  33  Penn.  337. 
How.  Miss.  215  ;  Sawyer  v.  Hop-        "  Reitenbaiigli    v.   Liidwick,    31 

kins,  9  Sliep.  26S  ;  Cook  v.  Scott,  Pcnn.  131;  Flinn  v.  Barlow,  10  111. 

1  Gilman,  ;'.:i3  ;  Wolfran  v.  Eyster,  39  ;  Smith  v.  Williams,  22  ib.  357 ; 
7  Watts,  38 ;  Blackley  v.  Sheldon,  Jones  v.  Julian,  12  Ind.  274.     See 
7  Johns.  32  ;  The  State  v.  Under-  McKeau  v.  Paschal,  15  Tex.  37. 
wood,  2  Ala.  744;  Donnell  v.  Van- 

(a)  It  is  the  duty  of  the  court  to  cause  the  jury  to  put  in  proper  form 
a  verdict  returned  in  defective  form.  Harrison  v.  Jaquess,  29  Ind.  208. 
On  an  issue  in  assumpsit,  a  verdict  of  guilty  was  found,  and  damages 
assessed.     Held,  amendable  under  the  (N.  J.)  statute.     State  v.  Gordon, 

2  Vroom,  264.  Upon  the  rendition  of  a  general  verdict  for  the  plaintiff, 
which  is  informal,  the  judge,  after  asking  and  receiving  an  explanation 
from  the  jury  in  open  court,  may  have  it  recorded  accordingly  and  in 
proper  form.  Haycock  v.  Greup,  57  Penn.  438.  So  although  a  verdict 
does  not  find  the  technical  issue  raised  by  the  pleadings,  if  one  that  the 
court  can  understand  and  from  which  there  is  no  difficulty  in  concluding 
a  verdict.  Tucker  v.  Cochran,  47  N.  H.  54.  Thus,  where  the  general 
issue  is  pleaded,  with  pleas  of  special  justification,  a  general  verdict  for 
the  plaintiff  is  valid,  and  will  be  recorded  by  the  court  in  formal  lan- 
guage. Stewart  v.  Fitch,  2  Vroom,  17.  Verdict,  in  assumpsit,  "  We,  the 
jurors,  find,  for  the  plaintiff,  $450."  The  verdict  was  ordered  to  be  put  in 
form,  in  the  presence  of  the  jury,  and  with  their  assent,  as  follows  :  "  We, 
the  jurors,  find  for  the  plaintiff,  and  assess  the  damages  at  1^450."  Held, 
proper.  Osgood  v.  McConnell,  32  111.  74.  Where  the  clerk,  in  preparing 
a  blank  verdict,  mistakes  the  name  of  one  of  the  defendants,  and  the 
error  escapes  the  notice  of  the  jury,  it  may  be  amended  by  the  court, 
after  the  return  of  their  verdict,  so  as  to  conform  to  the  writ  and  other 
papers,  the  jury  being  present,  and  affirming  the  verdict,  as  amended. 
Readfield  v.  Shaver,  50  ]\Iaine,  36.  It  is  not  error,  in  an  attachment 
execution,  where  the  jury  found  a  "verdict  for  the  plaintiff  ,$354  34,"  to 
allow  an  amendment,  "the  jury  find  for  the  plaintiff,  and  that  at  the 
time  of  the  service  of  the  writ  in  this  case  upon  the  garnishee,  there  was 
a  debt  of  $354  34  due  by  the  garnishee  to  the  defendant."  Keen  v. 
Hopkins,  48  Penn.  445.  In  Indiana,  where  a  verdict  is  defective,  the 
objection  should  be  taken  by  a  motion  for  a  venire  de  novo.  Marcus 
V.  State,  26  Ind.  101. 


150  THE   LAW    OF   NEW    TRIALS.  [CIL  VIII. 

Or,  if  the  jury  return  a  verdiet  wliicli  is  not  sucli  as  the 
issue  requires,  the  court  may  send  them  hack  to  reconsider 
their  verdict,  with  appropriate  instructions,  at  any  time 
before  it  is  received  and  recorded  as  a  verdict.'  Thus, 
where  the  jury  find  a  verdict  for  the  difference  between 
two  notes,  they  may  be  sent  back  to  cast  that  difference.^ 
So,  where  a  jury  bring  in  a  general  verdict  for  the  plain- 
tiff, in  an  action  for  obstructing  a  right  of  way ;  the  court 
may  send  them  out  to  assess  the  damages.'  So,  in  a  penal 
action  for  marrying  the  plaintiff"'s  minor  son,  if  the  jury 
return  a  verdict  that  the  defendant  is  guilty  in  manner 
and  form  as  he  stands  indicted ;  the  court  may  refuse  to 
receive  this  verdict,  and  send  them  out  again,  and  they 
may  return  a  verdict  against  the  defendant  in  proper 
form.^  So  a  jury,  who  return  a  verdict  that  does  not 
pass  upon  the  whole  matter  submitted  to  them,  may  be 
sent  out  again  by  the  court,  even  if  they  separated  after 
agreeing  upon  and  sealing  up  their  first  verdict,  before 
they  came  into  court.-^  So,  where  it  was  agreed  that  the 
jury  might  seal  up  their  verdict  and  separate,  the  verdict 
was  "for  the  i)laintift'  according  to  contract,"  and  the 
plaintiff'  moved  it  be  recommitted,  with  instructions  to 
amend  it,  which  was  done,  the  defendant  objecting.  The 
appellate  court  held  that  this  proceeding  was  correct ; 
certainly  so,  if  the  jury  were  present  when  the  verdict 
was  opened;  which  the  court  would- presume.^  So,  al- 
though, where  there  are  several  defendants,  the  jury 
sliould  find  as  to  all;  yet,  where  they  do  not,  the  irregu- 
larity may  be  cured,  in  Pennsylvania,  by  entering  a  not. 
pros,  in  the  Supreme  Court  or  Court  of  Common  Pleas, 
the  record  being  remanded  for  that  purpose.^     So,  where 


'  Goodwin  v.  Appleton,  0  Shop.  ^  PritcbarcIiJ.Hennessey,  1  Gray, 

453 ;    The   State   v.   Arringtou,    3  29-t. 

Murph.  571.  ^  Tifield    v.    Adams,    3    Clarke 

2  ^Vri^^llt  V.  Hester,  24  Geo.  485.  (Iowa),  4m;. 

3  Fisher  v.  Farley,  23  Penn.  501.  '  Ward  v.  Taylor,  1  Pcmi.  238. 
*  Bcates  v.  Rctallick,  23  Penu. 

288. 


CII.  VIIT.]      JURY.      VERDICT    AGAINST    LAW,    ETC.  151 

no  evidence  is  offered  on  one  of  two  counts  in  the  decla- 
ration, and  the  verdict,  by  mistake,  is  entered  generall}'- 
on  both  of  them,  it  may  be  corrected  from  the  notes  of 
the  judge.*  So  a  jury,  under  instructions  from  the  court 
below,  found  for  the  plaintiff  on  both  counts  in  his  decla- 
ration, and  assessed  separate  damages  on  each  count.  The 
court  thereupon  instructed  the  jur}-,  that  the  [)laintiff  was 
not  entitled  to  recover  on  his  second  count,  and  ordered 
them  to  find  a  verdict  for  the  defendant  on  that  count, 
which  they  accordingly  did.  The  case  being  Ijrought  into 
the  court  above,  upon  exceptions;  held,  this  court  had  no 
authority  to  amend  the  verdict,  so  as  to  conform  it  to  the 
first  finding  of  the  jury,  although  the  first  instructions  to 
them  were  right,  and  the  last  wrong ;  and  a  new  trial  was 
ordered.^  So  if  the  jury,  through  a  misconception  of  the 
effect  of  legal  terms,  have  returned  a  verdict  the  reverse 
of  what  they  intended,  and  such  verdict  has  been  affirmed ; 
the  papers  may  be  again  delivered  to  the  jury,  by  direc- 
tion of  the  presiding  judge,  before  they  have  separated  or 
left  their  seats,  and  the  judge  may  explain  to  them  the 
meaning  of  those  terms,  and  they  may  correct  their  ver- 
dict, although  the  writ  in  the  next  action  may  have  been 
read  to  them.^  So,  when  a  jury  render  an  informal  verdict 
requiring  explanation,  the  court  may  inquire  of  them, 
even  after  they  have  separated,  what  they  intended  to 
find,  and  the  verdict  may  then  be  reduced  to  form.^  So 
a  verdict  entered  by  mistake  upon  the  declaration  may  be 
transferred  to  the  proper  paper,  and  signed  by  the  foreman 
after  the  jury  have  dispersed.' 

§  31.  "Where  damages  are  duly  assessed,  but  not  in- 
serted in  the  verdict  before  separation  of  the  jury,  they 
may  be  inserted  by  amendment  of  the  verdict  before  it 


'  Smith  V.  Norman,  3  Dev.  496.  "  Clough  v.  Clou2:h,  6  Fost.  24  ; 

2  Rohberts  v.  Kockbottom  Co.,  7  Wolfnin  r.  Eij;stor,  7  Watts,  o8. 
Met.  40.  5  ci-aiy  „.  Carradiue,  4  Pike,  21fi. 

3  Ward  V.  Bailey,  10  Sliep.  316. 


152  THE    LAW    OF   NEW    TRIALS.  [CIL  VIII. 

is  accepted  or  affirmed.'  So  permission  was  given  to  a 
jury,  in  presence  of  counsel  who  did  not  object,  to  dis- 
perse on  finding  a  verdict.  Verdict,  "We  the  jury  find 
for  the  plaintiif."  The  next  morning,  the  court  directed 
this  verdict  to  be  amended,  according  to  the  statement  of 
the  foreman,  in  presence  of  the  jury,  as  to  the  amount  of 
damages  which  they  intended  to  find.  Held,  such  amend- 
ment was  rightly  allowed.^ 

§  32.  A  wrong  verdict,  the  amount  of  which  depends 
on  computation,  may  be  cured  by  a  remittitur.'^  So  to  an 
action  of  debt  for  money  had  and  received,  in  respect  of 
sums  paid,  under  protest,  on  the  admission  of  the  plain- 
tifl'  to  copyhold  premises,  alleged  to  be  charged  in  excess ; 
the  plea  was  never  indebted.  The  particulars  of  demand 
consisted  of  eleven  items,  amounting  in  all  to  £17  Is. 
On  a  case  reserved,  it  appeared  that  the  plaintiff  insisted 
that  the  principle  on  which  the  fees  were  charged  was 
faulty ;  and,  part  of  the  items  being  allowed  and  part  re- 
jected, it  was  held,  that  the  defendants  were  entitled  to 
have  the  verdict  entered  distributively,  viz.,  as  to  £9  Is.  M. 
for  the  plaintiff,  and  as  to  the  residue,  £7  195.  M.  for  the 
defendants.^  So,  where,  in  trespass  against  several,  there 
was  a  general  verdict  of  guilty  against  all,  it  was  held 
competent  for  the  jury,  on  being  called  back  immediately 
after  leaving  the  court-room,  to  correct  the  verdict  by 
finding  against  part  only.^ 

§  33.  A  condition,  annexed  to  a  verdict,  is  in  the  nature 
of  an  injunction  to  stay  proceedings  at  law,  and  uncer- 
tainty therein  will  not  vitiate  the  verdict.  The  court 
may  reduce  the  condition  to  a  certainty  either  with  or 
without  an  issue.  ^ 

'  DocB.  Scribncr,  oG  Maino,  108.         ^  Prussel   v.  Kuowlos,   4   How. 

2  Barnes  v.  Strohcckcr,  17  Geo.     Miss.  90. 

340.  6  iioury   v.    Raimau,    35    Pcun. 

3  Cross  t\  Wilkins,  43  N.  IT.  383.     354. 
*  Traherne  v.  Gardner,  8  Ellis  & 

B.  161. 


en.  VIII.]      JURY.      VERDICT    AGAINST    LAW,    ETC.  153 

§  34.  But  it  is  held  that  a  verdict  cannot  be  amended 
in  matter  of  su]>stance.'(rt)  So  it  is  sometimes  held,  that, 
when  a  jury  has  returned  an  imperfect  verdict,  which  is 
received  and  recorded,  and  the  jury  discharged ;  the  court 
cannot  reassemble  the  jury,  and  amend  the  verdict  ac- 
cording to  what  the  jury  then  state  it  was  their  intention 
to  find,  such  intention  not  appearing  on  the  face  of  the 
verdict.^  So  it  is  held  that  a  special  verdict  cannot  be 
amended  without  the  consent  of  both  parties;  but  a 
venire  facias  de  novo  may  be  awarded,  in  order  to  complete 
the  verdict.^  So,  in  replevin,  the  jury  came  into  court 
with  a  verdict  signed  by  the  foreman.  It  was  read  by  the 
clerk,  "  the  jury  find  that  the  defendant  did  take^'  &c. 
The  verdict  was  reafiirmed  and  ordered  to  be  recorded, 
and  the  jury  discharged.  Afterwards,  upon  suggestion 
that  the  verdict  was  wrongly  read,  which  appeared  from 
the  verdict  itself  and  aflidavits  of  the  jurors  that  they 
intended  to  find  for  the  defendant ;  the  verdict  not  having 
been  actually  recorded,  the  judge  ordered  the  verdict  for 
the  defendant  to  be  recorded,  and  judgment  thereon. 
Held,  the  verdict  should  be  set  aside,  never  having  been 
affirmed  by  the  jury. ''(6) 

'  Wallace    v.  Hilliard,    7    Wis.        ^  xj.  States  v.  Bird,  2  Brer.  8o. 
627.  *  Bueknam     v.     Greenlcaf,     48 

2  Settle  V.  Alison,  8  Geo.  201.  Maine,  394. 

(a)  A  general  verdict,  in  favor  of  one  party,  rendered  in  obedience  to 
the  instructions  of  the  judge,  cannot  be  corrected,  on  motion,  so  as  to 
transform  it  into  a  verdict  for  the  other.     Brush  v.  Kohn,  9  Bosw.  589. 

(&)  See  further,  as  to  verdicts  against  laxv,  Cochrane  v.  Boston,  4 
Allen,  178;  Chambers  v.  Collier,  4  Geo.  193;  Thornton  i'.  Lane,  11  ib. 
459;  Brock  v.  Garrett.  16  ib.  487;  Tyler  v.  Gray,  9  ib.  408;  Marr 
V.  Johnson,  9  Yerg.  1 ;  Doggett  v.  Jordan,  4  Fieri.  121. 


154 


THE   LAW    OF   NEW    TRIALS. 


[CII.  IX. 


CHAPTER  IX. 

JURY.  IRREGULARITIES  CONNECTED  WITH,  AS  GROUNDS 
OF  NEW  TRIAL.     INCOMPETENCY. 


1.  General  principle. 

3.  Presumption  of  competency. 

4.  Challenge  and  new  trial  com- 
pared. 

8.  Agreement  of  jury;  mode  of 
proof  on  the  subject ;  affidavits  ; 
modes  of  arriving  at  the  verdict, 
&c. 

14,  18.  Incompetencj'^  of  juror. 

17.  Swearing. 

22.  Aliens. 

23.  Drawing  and  impanelling, 
26.  Misnomer. 


29.  Talesmen. 

31.  Change  of  jurors. 

32.  Partiality ;  preconceived 
opinion  ;  examination  on  voir  dire, 
&c. 

52.  Relationship. 

59.  Other  connections  with  a 
party. 

GO.  Interest;  inlia])itants  of  a 
county  or  town  ;  members  of  an 
association;  miscellaneous  cases. 

72.  Opinions  of  juror  ;  conscien- 
tious scruples. 


§  1.  The  last  chapter  relates  more  particularly  to  the 
nature  of  the  verdict^  as  indicative  of  misconduct  in  the 
jury,(«)  or  in  itself  imperfect  and  irregular. 

§  2.  In  the  natural  order  of  subjects,  we  proceed  to 
consider,  independently  of  the  verdict  itself,  as  a  promi- 
nent ground  for  new  trial,  any  irregularity,  incompetency, 
prejudice,  or  other  circumstance  tending  to  affect  the  cor- 
rectness of  the  verdict,  in  connection  with  the  jury  by 
which  the  cause  was  tried;  whether  applicable  to  the 
whole  panel  or  only  to  some  individual  juror  or  jurors. 

§  3.  In  reference  to  the  qualifications  of  a  juror — and 
probably  the  same  rule  applies  to  other  alleged  objections 
in  connection  with  the  jury — the  presumption  is,  that  a 
juror  properly  drawn  is  competent,  and  a  verdict  will  not 


(a)  It  is  said,  "A  verdict  is  never  set  aside  for  a  juror's  misbehavior 
towards  the  court,  unless  it  is  prejudicial  to  one  or  other  of  the  parties." 
Crane  v,  Sayre,  1  Ilalst.  110. 


en.  IX.]  JURY.      IRREGULARITIES,    ETC.  155 

be  set  aside  unless  his  incompetency  be  satisfactorily 
proved.  Thus  to  disqualify  a  juror  on  the  ground  of 
alienage^  it  is  not  sufficient  to  show  that  a  search  of  the 
records  of  the  county  has  been  made,  and  that  no  record 
of  the  naturalization  of  his  father,  who  was  an  alien, 
could  be  found. ^ 

§  4.  In  general,  the  same  objection  of  this  nature,  which 
affords  ground  of  new  trial,  may  be  taken  in  the  form  of 
a  preliminary  challenge.{a)  But,  on  the  other  hand,  it  is 
not  every  mere  cause  of  challenge,  which  if  made  at  the 
time  would  set  aside  a  juror,  that  is  sufficient  ground 
afterwards  to  set  aside  the  verdict.^ 

§  5.  If  a  ground  of  new  trial  is  first  discovered  after  a 
motion  in  arrest  of  judgment,  as  in  case  of  misbehavior 
of  the  jury,  the  law  allows  it  to  be  made.^ 

§  6.  In  Kentucky,  alienage.,  though  cause  of  challenge, 
is  not  ground  of  new  trial,  though  unknown  to  the  party 
and  his  counsel  till  after  verdict. "•  And  the  same  rule  is 
adopted  in  Illinois  in  reference  to  other  disqualifications. 
On  the  other  hand,  in  Tennessee,  where  a  juryman  is  se- 
lected upon  a  criminal  case,  and  ordered  to  take  his  seat, 
but,  before  being  sworn,  is  discharged  by  the  court  be- 
cause he  is  less  than  twenty-one  years  of  age;  this  is  no 
ground  for  new  trial,  although  excepted  to  by  the  defend- 
ant at  the  time.®  But  in  England  an  inquisition  was  set 
aside,  on  the  ground  that  the  writ  had  been  entered  at  the 
time  of  the  assizes  before  jurymen,  some  of  whom  were 
debtors  taken  out  of  prison  for  that  purpose,  and  although 
the  defendant's  attorney  had  attended  the  execution  of 

•  Keenan  v.  State,  8  "Wis.  133.  ♦  Prcsbnry    v.    The     Coramon- 

2  Cook  V.  Castner,  9  Cusli.  36G.       wealth,  <J  Dana,  203. 
»  Philips  V.  Fowler,  Barues,  441.        ^  Hines  y.  State,  8  Humph.  597  ; 

Greenup  v.  Stoker,  3  Gilman,  203. 

(a)  See  Com.  v.  Marra,  Leg.  Intel!.,  Dec.  3,  1869. 


156  THE    LAW    OF   NEW    TRIALS.  [CH.  IX. 

the  writ.  It  was  suggested,  that,  if  the  sherifi'  liad  l)een 
made  part}'  to  the  rule,  perhaps  the  court  would  have 
required  him  to  pay  the  costs  of  the  aiiplication.^ 

§  7.  It  is  not  ground  of  new  trial  that  one  of  the  venire^ 
upon  being  called,  was  challenged  by  the  State,  and  di- 
rected to  retire  until  the  panel  was  gone  through  with, 
and  was  not  afterwards  recalled,  the  prisoner  making  no 
motion  to  that  effect,  and  it  being  known  that  the  juror 
was  a  witness  for  the  prisoner. -(a)  ^N'or  that  a  challenge 
of  a  juror  by  a  party  for  cause  has  been  improperly  over- 
ruled, where  he  has  been  tried  by  a  jury  to  whom  he  had 
no  objection,  not  having  been  prevented  from  exercising 
his  privilege  of  challenging  peremptorily.-''  iN'or  that 
jurors  were  set  aside  who  were  not  objected  to  hy  the 

•  Stainton  v.  Beadle,  4  T.  R.  473.        »  Wliitaker  v.  Carter,  4  Ired.  4G1, 
2  State  V.  Lytle,  5  Ired.  58. 

(a)  As  to  the  right  of  challenge  by  the  Commonwealth,  see  Hartzell 
V.  Cora.,  40  Penn.  4G2.     On  the  general  subject  of  challenge,  see  State 
V.  Knight,  43  Maine,  11;  Cancemi  v.  The  People,  IG  N.  Y.  501 ;  Hatha- 
way V.  Ilclmcr,  25  Barb.  29;  Thompson  v.  The  People,  3  Park.  467 
King  V.  The  State,  21  Geo.  220 ;   Mitchell  v.  The   State,  22  ib.  211 
Pines  V.  The   State,   21   ib.   227;   Jordan  v.  The   State,  22   ib.   545 
Marsh  v.  The   State,  30   Miss.  627 ;   People  v.  Backus,  5   Cal.  275 
People   V.  Koble,  4  ib.  198;    People  v.  Reyes,  5   ib.  347;  People  v 
Roberts,  6  ib.  214;  People  v.  Christie,  2  Parker,  C.  R.  (N.  Y.)  579 
People  V.  Cauiff,  2  Parker,  586  ;  Zimmerly  v.  Road  Commissioners,  25 
Penn.  134;  Cook  v.  State,  4  Zabr.  843;  McFadden  v.  Commonwealth, 
23  Peun.  12 ;  Schumaker  v.  State,  5  Wis.  324 ;  O'Byrne  v.  State,  29 
Geo.  36  ;  Scborn  v.  AVilliams,  6  Jones,  575 ;  State  v.  Buckner,  25  Mis. 
167  ;  Cleveland,  &c.  v.  Stanley,  7  Ohio  (N.  S.).  155  ;  McGuffie  v.  State, 
17  Geo.  497  ;  Brister  v.  State,  26  Ala.  107 ;  U.  S.  v.  Shackleford,  18 
How.  588;  Vanhook  v.  State,  12  Tex.  252  ;  Schoeffler  v.  The  State,  3 
Wis.  823  ;  State  v.  Patrick,  3  Jones,  443;  Keener  v.  State,  18  Geo.  194; 

State  V.  Price,  10  Rich.  351 ;  State  v.  Pierce,  8  Clarke,  231 ;  v. 

Wilson,  ib.  407  ;  v.  Shelledy,  ib.  477  ;  Conkcy  v.  Northern,  &c.,  6 

Wis.  477 ;  State  v.  Boatwright,  10  Rich.  407 ;  State  v.  Hays,  23  Mis. 
287 ;  Walston  v.  Com.,  16  B.  Mon.  15  ;  Spencer  v.  De  Fruuce,  3  Iowa, 
216. 


CII.  IX.]  JURY.      IRREGULARITIES,    ETC.  157 

prisoner,  altliough  the  number  of  clmllenges  to  -wliicli  he 
Avas  entitled  was  not  exhausted.'  ISTor  tliat,  where  a  jury- 
man was  rejected,  and  the  sheriff' ordered  to  obtain  a  sub- 
stitute, the  prevailing  l^arty  pointed  out  a  person  to  the 
sheriff'  who  summoned  him ;  as  it  appeared  that  the  fact 
had  no  influence  on  the  sheriff'  in  the  selection,  and  it  did 
not  appear  that  the  defendant  intended  to  influence  him 
improperly.^ 

§  8.  A  verdict  implies  the  agreement{(i)  of  all  the  jurors 
by  whom  it  is  found.  The  absence  of  such  agreement 
therefore  is  held  ground  for  setting  aside  a  verdict,  though 
in  form  unanimous.  And  the  same  objection  may  involve 
misbehavior  on  the  part  of  the  jury,  which  is  itself  an  in- 
dependent ground  of  new  trial.  As  where  the  plaintiff' 
claimed  on  two  distinct  grounds,  either  of  which,  if  found 
in  his  favor,  would  entitle  him  to  a  verdict,  and  it  ap- 
peared that  the  jury  did  not  consider  and  decide  on  either 
ground  separately,  but  that  some  might  have  decided  on 
one,  and  some  on  the  other.^  So  a  new  trial  was  ordered, 
where  the  jury  told  the  officer  they  had  agreed,  and 
thereupon  separated,  and  talked  of  the  case  in  a  bar-room ; 
and,  the  next  morning,  returned  to  the  court  a  paper 
signed  by  all  of  them,  and  stating  that  they  did  not 
agree ;  and  were  then  sent  out  again,  and  returned  a  ver- 

'  The  State  v.  Wise,  7  Rich.  412.        »  Bitrgs  v.  Barry,  3  Curtis,  C.  C. 
2  Park  V.  Harrison,   8   Humph.     209;  tucker  w.  The  Town,  &c.,  5 
412.  R.  I.  561. 

(a)  "  A  verdict,  as  the  name  imports  {veredictum),  is  taken,  in  theory 
of  law,  to  be  absolute  truth,  and  it  is  important  that  it  be  so  regarded." 
Per  Shaw,  C.  J.,  Cook  v.  Castner,  9  Cush.  78.  "  The  record  of  a  ver- 
dict implies  an  unanimous  consent  of  the  jury,  and  is  conclusive  and  in- 
controvertible evidence  of  the  fact."  Per  Sewall,  J.,  Grinnell  ?-.  Phillips, 
1  Mass.  541.  The  affidavit  of  a  juror  is  inadmissible,  that  he  was  sick 
■while  in  the  jury-room,  and  assented  to  the  verdict  in  order  to  obtain 
release,  although  believing  it  erroneous.  So  the  affidavits  of  three  other 
jurors,  that,  having  a  like  belief,  they  assented  in  order  to  relieve  the  sick 
juror.     Browne  v.  Browne,  22  Md.  103. 


158  THE    LAW    OF    NEW    TRIALS.  [CII.  IX. 

dict.\''^)  So,  wliorc,  on  tlie  trial  of  an  indictment  a^-ainst 
two  dcfondantf^,  the  jury  coming  into  court,  and  intimat- 
ing an  intention  to  ac(|uit  one  of  them,  the  court  remarked, 
that,  if  one  was  guilty,  both  were,  and  the  State's  attorney 
therefore  ordered  the  clerk  to  enter  a  verdict  of  guilty 
against  both,  and  the  jury  were  asked  if  any  of  them  dis- 
agreed to  such  verdict,  to  which  the  only  reply  was  a  nod.^ 
So  cither  party  may  demand  a  i)oll  of  the  jury,  and  if, 
thereu}>on,  a  juror,  even  after  signing  the  verdict,  states 
his  dissent;  the  court  cannot  properly  do  anything  to 
overcome  such  dissent.^ 

§  9.  The  general  rule,  which  we  shall  hereafter  (chap. 
10)  consider  more  particularly,  tliat  the  affidavit  of  a  juror 
is  not  admissible  to  prove  his  own  misconduct,  has  been 
applied  to  the  point  of  agreement.  Thus  a  juror  cannot 
be  allowed  to  impeach  his  verdict,  by  declaring  that  he 
did  not  agree  with,  but  submitted  to  the  rest.^  So  the 
affidavit  of  a  juryman,  that  he  would  not  have  agreed  to 
the  answers  given  by  the  foreman  to  the  court,  if  he  had 
known  that  they  would  have  entitled  the  plaintiff  to  a 
verdict,  was  held,  if  admissible,  no  ground  for  disturbing 
the  verdict.^  !N^or  is  it  a  ground  of  objection  to  the  ver- 
dict in  a  capital  case,  that,  immediately  after  it  was  pub- 
blished  by  the  clerk,  a  motion  was  made  by  the  prisoner's 
counsel  to  have  the  jury  polled,  which  motion  was  re- 
fused; the  court  having  no  doubt  respecting  the  concur- 


'  Oliver  v.  Springfield,  5  Cow.  *  i\rorcer  ».  State,  17  Geo.  14G. 

2^3.  ^  Hiipluiol  V.  Bank,  &c.,  33  Eng. 

2  The  State  v.  Shule,  10  Ired.  153.  Law  ct  Eq.  276. 

3  Slate  V.  Austin,  6  Wis.  20.5. 

(a)  But  even  in  a  case  of  murder,  whore  the  jury  agreed  to  return  a 
verdict  of  not  guilty,  but,  if  the  judge  were  dissatisfied,  to  change  it  into 
a  verdictof  guilty  ;  the  facts  being  disclosed  by  two  jurors,  the  jury  were 
sent  out  again,  and  returned  a  verdict  of  guilty.  Wats  v.  Brains,  Cro. 
Eliz.  778.     Sec  Bealc  i'.  Hall,  22  Geo.  431. 


Cir.  IX.]  JURY.      IRREGULARITIES,    ETC.  159 

rence  of  tlio  jury.^  Kor  that  some  of  tlic  jurors  agreed 
to  tlie  verdict,  because  they  erroneously  believed  that  the 
plaiutitf  could  review  the  cause.-  Nor  that  the  jury 
agreed  that  a  majority  should  decide  the  case,  and  were 
at  first  equally  divided,  and  then  one  changed  his  vote, 
and  gave  the  verdict  to  the  prevailing  party.^  Xor  upon 
the  affidavits  of  some  of  the  jurors,  that,  if  they  had 
recollected  certain  items  of  the  plaintift"'s  claim,  and  in- 
cluded them  in  their  estimate,  they  should  not  have  agreed 
upon  their  verdict;  especially,  if  other  jurors  give  a 
different  account  of  the  manner  in  which  the  jury  came 
to  their  conclusion. ^(a) 

§  9a.  If  a  juror,  on  being  asked,  "  Is  this  your  verdict  ?" 
says,  "  It  is,  as  far  as  it  goes ;"  this  is  an  assent.^ 

§  10.  After  returning  a  sealed  verdict,  as  allowed  by 
law,  for  the  plaintiff,  but  unsigned,  the  jury  by  consent 
were  sent  out  to  sign  it,  and  reported  that  they  could  not 
agree.  A  verdict  being  valid  though  not  signed,  held, 
the  plaintiff  had  not  waived  his  right  to  judgment.^  So 
the  jury  were  instructed  to  bring  in  a  sealed  verdict  the 
next  morning.  Having  found  their  verdict,  they  sealed 
it  up,  and  gave  it  to  the  officer  in  attendance,  who  handed 
it  to  the  clerk  the  same  evening.  The  clerk  opened  it  in 
court  the  next  morning  in  the  presence  of  the  jury,  who, 
however,  were  not  then  asked  whether  they  agreed  to  the 
verdict ;  but  no  objection  was  taken  at  the  time.  Held, 
the  verdict  should  stand.'' 

'  The  State  D.Wise,  7  Rich.  412.        '»  Newton    v.  Booth,   13  Verm. 

See  Beale  v.  Hall,  23  Geo.  4-51.  320. 

2  Nevvtou  V.  Booth,  13  Verm.  ^  Rankin  v.  Harper,  23  Mis.  579. 
320.  6  Miller  v.  .ALihou,  G  Clarke,  456. 

3  McCarty  v.  McCarty,  4  Rich.        ?  Paige  v.  O'Neal,  12  Cal.  483. 
594, 

(a)  It  is  error  to  strike  from  the  affidavits  of  jurors,  that  their  verdict 
was  obtained  by  each  juror's  marking  down  the  sum  desired  by  him,  and 
adding  all  together,  and  dividing  the  amount  by  twelve.  IJendrioksou 
V.  Kingsbury,  21  Iowa,  379. 


IGO  THE    LAW    OP   NEW    TRIALS.  [CII.  IX. 

§  11.  The  agreement,  necessary  to  a  valid  verdict,  must 
be  that  of  the  number  of  jurymen  fixed  by  law.  "A  legal 
jury,  according  to  the  common  law,  consists  of  twelve  per- 
sons."^ And  the  refusal  to  give  a  trial  of  fact  by  a  jury 
of  twelve  men,  instead  of  six,  is  the  denial  of  a  constitu- 
tional right,  and  ground  for  a  new  trial.^  So  the  trial  of 
a  case  before  eleven  jurors;  unless  the  party,  knowing  the 
defect,  waived  it.  It  is  a  duty  of  the  court  to  see  that 
the  jury  is  properly  constituted,  and  the  question  to  a 
party,  whether  he  has  any  objection  to  the  jury,  means, 
whether  he  has  any  challenge  to  make ;  his  answer  in  the 
negative,  without  notice,  is  not  an  express  waiver  of  the 
above-named  defect.-\rt) 

§  12.  As  necessary  to  fulfil  the  requisition  of  agreement^ 
a  verdict  should  be  the  result  of  the  deliberate  judgment 
of  the  jury,  and  not  of  chance  or  hazard;'*  as  where,  in 
the  old  cases,  the  jury  threw  up  cross  or  pile  to  determine 
the  amount  of  damages,®  or  hustled  halfpence  in  a  hat,® 
or  drew  lots,  although  the  verdict  was  right.^  So,  in  order 
to  settle  a  term  of  imprisonment,  the  jury  agreed  that  each 
should  set  down  what  he  thought  right,  that  these  amounts 
should  be  added  together,  divided  by  twelve,  and  the  quo- 
tient, whatever  it  might  ])c,  adopted.  Held  ground  for  a 
new  trial,  though  it  would  have  been  otherwise,  if  the 

'  Cancemi  v.  The  People,  18  N.  *  Doniier  v.  Palmer,  23  Cal.  40. 

Y.  (4  Smith)  135  ;  per  Strong,  J.  ^  Mellish  v.  Arnold,  Bunb.  51. 

2  May  V.   Mil.   &  Miss.,  tic.,   3  ^  Parr  «.  Seames,  Barnes,  438. 
Wis.  219.     See  Turns  v.   Com.,  6  ^  Hale  v.  Cove,  1  Str.  642;  Ru- 
Met.  224;   Foote  v.   Lawrence,   1  ble  «.  McDonald,  7  Clarke,  !)0;  El- 
Stew.  483.  ledge  v.  Todd,  1  IIumi)li.  43;  Par- 

3  Cowles  V.  Buckman,  G  Clarke,  han  v.  Ilarnev,  G  Sm.  &  M.  55  ; 
161.  Bennett  v.  Baker,  1  Humph.  399. 

(a)  An  agreement  placed  on  record,  "that  the  verdict  of  the  majority 
of  the  jury  shall  l)c  made  the  judgment  of  this  court,"  is  not  a  submission 
to  arbitrators,  whose  award  should  be  final,  but  an  agreement,  to  facilitate 
a  verdict,  that  the  verdict  by  the  majority  should  be  entitled  to  the  same 
judgment  as  if  the  twelve  jurors  had  concurred  in  it.  Northern  Bank  v. 
Buford,  1  Duv.  335. 


en.  IX.]  JURY.      IRREGULARITIES,   ETC.  161 

agreement  had  been  to  accept  such  amount,  "  if  satisfac- 
tory," or  if  such  figuring  were  by  way  of  experiment.^ 
So,  where  each  juror  put  down  a  certain  sum  for  dam- 
ages and  the  aggregate  was  divided  by  twelve.^(a)  So, 
in  an  action  for  breach  of  promise,  an  instruction,  that,  if 
the  jury  believed  the  plaintifl'  ought  to  recover,  but  dis- 
agreed as  to  the  amount,  "  they  have  the  right,  each  one, 
to  set  down  the  sum  he  believes  ought  to  be  recovered  by 
the  plaintiff,  and  add  thoni  all  together,  then  divide  the 
sum  total  by  the  number  twelve,  and  find  that  amount, 
twelfth  part,  in  damages,  if  they  think  proper  to  do  so," 
is  erroneous.^  And,  contrary  to  the  prevailing  rule,  this 
irregularity  has  been  sometimes  proved  by  afiidavits  of 
the  jurors.^  So  also  by  the  testimony  of  the  constable  that 
he  overheard  the  agreement;  and  also  that  the  jurors  ad- 
mitted it  to  him  (though  this  was  held  doubtful).^ 

§  13.  But  on  the  other  hand  it  is  held  that  a  new  trial 
will  not  be  granted,  where  the  method  of  lot  or  chance 
"is  adopted  merely  for  the  sake  of  arriving  at  a  reason- 
able measure  of  damages,  without  binding  the  jurors  by 
the  result."^  A  compromise  verdict  is  not  necessarily 
illegal.^  And  a  middle  sum,  especially  in  torts,  may 
sometimes  be  the  best  rule.^    As  where  there  was  first  a 


'  Crabtree  v.  State,  3  Sneed,  302;  *  Warner  v.  Robinson,  1  Eoot, 

Birchard  v.  Booth,  4  Wis.  67;  Den-  194. 

ton  V.  Lewis,  lil  Iowa,  301.  ^  Smith  v.  Cheetham,  3  Caines, 

2  Smith  V.  Cheetham,  3  Caines,  57. 
57 ;  Roberts  v.  Failis,  1  Cow.  238  ;  '^  Dana  v.  Tucker,  4  John.  487 ; 
Harvey  «.  Rickett,  15  John.  87;  Guard  «.  Risk,  11  Ind.  150;  Chan- 
Warner  V.  Robinson,  1  Root,  194  ;  dler  v.  Barker,  2  HarriuJ,^  587  ; 
Manix  v.  Malony,  7  Clarke,  81  ;  Johnson  v.  Perry,  2  Humph.  569. 
Schaulcr  v.  Porter,  ib.  482.  See  "  I  larrisou &  McGehee  ».  Powell, 
Dunn  V.  Hall,  8  Blackf.  32.  24  Geo.  530. 

*  Allard  v.   Smith,  2  Met.  Ky.  **  Cowperthwaite     v-    Jones,    2 

297.  Dall.  55. 

[a)  Such  S,  verdict  is  not  a  chance  verdict  within  the  second  subdivi- 
sion of  §  193  of  the  (Cal.)  practice  act,  and  cannot  therefore  be  im- 
peached by  the  affidavits  of  jurors.  Turner  v.  Tuolumne,  25  Cal.  397  ; 
Boyce  v.  California,  ib.  460. 
11 


162  THE    LAW    OF    NEW    TRIALS.  [CIL  IX. 

sum  named  by  each  juror,  and  a  subsequent  agreement  to 
adoi)t  the  result  as  the  verdict.^  (In  this  case  ten  jurors 
named  a  sum ;  as  proved  by  one  of  the  two  others.)  So 
where  some  thought  the  amount  too  high,  but  for  the 
sake  of  being  released  yielded  to  the  majority .^  (Affida- 
vits were  received  in  this  case.)  So  where  each  juror 
marked  a  sum,  and  the  aggregate  was  divided  by  twelve, 
but  this  sum  was  not  agreed  to.  Another  marking  and 
division  were  had,  which  were  unsatisfactory,  and  it  was 
at  length  determined  to  adopt  the  previous  result,  with  a 
certain  deduction.^  So  where  jurors,  concurring  in  the 
guilt  of  the  prisoner,  severally  set  down  the  time  for 
which  they  thought  he  should  be  confined  in  the  peniten- 
tiary, and  the  aggregate  was  divided  by  twelve;  after 
which  they  all  concurred  in  it  as  their  verdict.^a) 

§  14.  It  has  been  sometimes  held  that  a  new  trial  will 
not  be  granted  for  the  incompetency  of  a  juror.\(^)     Nor 

1  Barton   v.   Holmes,    16    lo-wa,  »  Bircliard  v.  Booth,  4  Wis.  67. 
253  ;  Grinnell  v.  Phillips,  1  Mass.  ^  Thompson's  Case,  8  Gratt.  G37. 
541.  5  Booby  ■«.  The  State,  4  Yerg. 

2  Shobe  V.  Bell,  1  Band.  39.  111. 

(a)  A  verdict  first  obtained  by  lot  will  be  set  aside,  unless  there  is  very 
clear  evidence  of  its  repudiation,  and  of  a  subsequent  proper  finding. 
Thom^json  v.  Perkins,  26  Iowa,  486.  As  where  a  jury  agree  to  decide 
by  lot,  and,  in  advance  of  the  drawing,  agree  to  be  bound  by  the  result; 
though  after  the  drawing  all  vote  conformably,  as  a  declaration  of  wil- 
lingness to  abide  the  result  of  the  lot.     Ibid. 

(h)  On  the  general  subject  of  the  qualifications  of  jurors,  see  Kirby's 

case,  7  Leigh,  747;  Com.  v.  Carter,  2  Va.  Cas.  319;  v.  Moore,  9 

Leigh,  639 ;  v.  Burcher,  2  Rob.  826 ;  Briggs  v.  Georgia,  15  Verm. 

61 ;  Bratton  v.  Bryan,  1  A.  H.  Mar.  212  ;  Finley  v.  Hayden,  3  ib.  330 ; 
Ladd  V.  Prentice,  14  Conn.  109;  Stephen's  case,  4  Leigh,  679;  Hen- 
drick's  case,  5  Leigh,  707;  Byrd  v.  State,  1  How.  163;  Anderson  v. 
State,  5  Pike,  444;  State  v.  Bryant,  10  Ycrg.  527  ;  Shoemaker  v.  State, 

12  Ohio,  43  ;  State  v.  Mussey,  2  Hill  (S.  C.)  379  ;  v.  Williams,  ib. 

381 ;  People  v.  Fuller,  2  Park.  16 ;  Carpenter  v.  Dame,  10  Ind.  125. 
In  Mississippi  a  defendant  cannot,  after  conviction,  insist  upon  a  new 
trial,  on  account  of  the  incompetency  of  a  juror,  and  of  his  own  igno- 


CII.  IX.]  JURY.      IRREGULARITIES,   ETC.  163 

for  the  rejection,  from  the  panel,  of  a  juror,  supposed  to 
be  competent;  a  new  trial  in  such  case  not  furnisliing  any 
remedy.^  So,  if  the  jury  be  irregularly  sworn  by  the 
inadvertence  of  both  parties,  and  a  verdict  taken  against 
two,  one  of  whom  had  not  appeared,  the  court  will  correct 
the  irregularity  without  ordering  a  new  trial,  where  it 
can  do  so  consistently  with  the  merits.^ 

§  15.  The  distinction  is  made,  that,  "  if  the  objection 
goes  to  the  moral  capacity  or  impartiality  of  the  juror,  or 
to  any  matter  which  goes  to  impeach  the  fairness  or  im- 
partiality of  the  verdict,  if  not  discovered  until  after  the 
verdict,  it  would,  no  doubt,  be  as  good  a  ground  for  a  new 
trial,  as  a  cause  of  challenge  before.  But  when  the  objec- 
tion rests  upon  technical  ground,  as  the  want  of  property, 
alienage,  or  the  like,  we  cannot  admit  that  the  rule  ap- 
plies."^ So  a  distinction  is  taken  between  the  cases, 
where  objection  is  made  to  the  personal  q^ualifications  of 
a  juror,  as  that  he  was  not  liher  et  legalis  homo,  or  drawn 
from  a  wrong  vicinage ;  and  where  there  is  a  mere  irregu- 
larity in  his  return,  as  that  he  was  drawn  more  than  the 
legal  time  before  the  sitting  of  the  court.  In  the  latter 
case,  although  the  officer  may  be  punishable,  or  the  jury- 
man dismissed,  a  new  trial  will  not  be  granted.*(a)  In 
this  case,  also,  which  was  an  alleged  irregularity  in  the 

'  West  V.  Forrest,  22  Mis.  344.  ^  Per  Marshall,  C.  J.,  Queen,  &c. 

2  Haas  V.  Evans,  5  Watts  &  Serg.     v.  Hepburn,  7  Crancli,  297. 
352.     See  p.  165.  ♦  Amherst  v.  Hadley,  1  Pick.  38. 

ranee  of  such  incompetency  at  the  time  of  the  trial.  George  v.  State, 
39  Miss.  570.  An  order,  granting  a  new  trial  for  incompetency  of  a  juror, 
will  not  be  reversed,  although  the  juror  was  competent,  if  the  motion 
was  heard,  in  part,  upon  "  minutes  of  the  judge,"  and  the  "  minutes"  are 
not  made  part  of  the  record.     Bowea  v.  Malbon,  20  Wis.  491. 

(a)  In  New  Jersey,  in  cases  where  a  venire  should  be  "  as  well "  to 
assess  damages,  as  to  try  an  issue,  if  the  award  of  the  venire  is  right,  it 
is  no  ground  for  a  new  trial,  that  the  venire  is  in  the  common  form,  with- 
out the  introduction  of  the  tarn  quam  clause.  Caldwell  v.  West,  1  New 
Jersey,  411. 


164  THE    LAW    OF   NEW    TRIALS.  [CH.  IX. 

election  of  jui-ors  from  a  certain  town  in  the  county,  tlie 
distinction  is  taken,  between  an  informality  of  this  nature, 
not  apparently  affecting  the  merits,  and  the  objection  of 
interest  or  prejudice  in  a  juror.  It  is  remarked  that  a 
contrary  rule  would  furnish  a  dangerous  temptation  to 
send  through  the  towns  of  the  county,  in  order  to  get  rid 
of  an  honest  verdict  ui)on  technical  grounds. 

§  16.  And  a  verdict  will  not  be  set  aside,  merely  on  the 
ground  that  some  of  the  jurors  were  irregularly  selected, 
although  the  party  did  not  know  of  such  iiTegularity 
before  the  verdict.^  ISTor  because  a  juror  was  a  person  by 
law  exempted  from  that  service;  as  where  a  statute  pro- 
vided that  "ordained  ministers  arc  exempted  from  serv- 
ing on  juries,  and  their  name  shall  not  be  placed  on  said 
list  of  jurors."  The  court  took  a  distinction  between 
exemption  and  disqualification.  A  person  disqualified,  and 
therefore  incompetent  and  incapable,  cannot  be  exempted 
from  a  duty  or  a  service,  when  the  law  imposes  no  such 
duty  or  service  upon  him.  Such  an  exemption  is  a  per- 
sonal privilege,  with  which  the  parties  to  the  cause  have 
no  concern.^  So,  where,  after  issuing  of  venires  for  the 
county  of  II.,  the  town  of  G.  was  set  off  from  H.,  and 
annexed  to  P.,  but  a  juror  belonged  to  G. ;  and  no  chal- 
lenge was  made  for  this  cause :  held,  the  objection  was 
waived.^  So  the  relationship  of  the  sheriff,  who  sum- 
moned the  jury,  to  a  party,  is  ground  of  challenge  to  the 
array;  but  the  objection  cannot  be  raised  as  ground  for  a 
new  trial,  unless  good  excuse  is  shown  for  not  taking  it 
before.^(a) 

'  Paije  V.  Danvers,  7  Met.  326.        ^  ]vjt.  Desert  ■».  Cranberry,  &c., 
See  p.  108.  46  Maine,  411. 

2  State  V.  Forslmer,  43  N.  H.  89,        «  Rector  v.  Hudson,  30  Tex.  234. 
90,  91 ;  Breeding  v.  State,  11  Tex. 
257. 


(a)  In  California,  under  the  act  concerning  jurors  (|  1  Sts.  of  1852, 
p.  7),  a  juror,  who  is  not  an  elector  of  the  county  for  which  he  is  sum 
moued,  is  incompetent.     Sampson  v.  Schaffer,  3  Cal.  107.     He  cannot  be 


CH.  IX.]  JURY.      IRREGULARITIES,   ETC.  165 

§  17.  It  is  held  ground  of  new  trial,  tliat  the  jury  were 
not  sworn,  or  not  in  proper  form.^  Thus  it  is  held  that  a 
jury  may  not  be  sworn  to  try  the  issue,  till  issue  be  made 
by  replying  to  good  pleas  in  bar.^  But  a  new  trial  will 
not  be  granted,  because  the  oath  of  the  jury  was  slightly 
informal.^  Thus  it  is  not  necessary,  in  an  action  of  trover, 
to  swear  the  jury  "to  try  the  issue  and  the  damages  to 
assess  ;"  it  is  sufficient  if  they  are  sworn  "  to  try  the  issue 
joined."^  And  a  record  may  be  substantially  good,  stating 
that  the  jury  were  sworn,  but  not  for  what ;  the  presump- 
tion being,  that  they  took  the  proper  oath.^(a) 

'  Irwin  ».  Jones,  1  How.  (Miss.)  '  Earl  v.  Van   Buren,  2   Halst. 

497  ;    Beall  v.  Campbell,    ib.    24 ;  344 ;  State   v.  Jones,  5  Ala.  66G  ; 

Harriman  v.  State,  3  Greene,  270 ;  State  v.  Pile,  5  Ala.  72  ;  Dyson  v. 

Patterson  v.  State,  2  Eng.  59  ;  Bell  State,  4  Cusbm.  362 ;  U.  S.  v.  Reed, 

V.  State,    5  ib.   536  ;   Sandford   v.  2  Blatch.  435  ;  Dillingham  v.  Skein, 

State,  6  ib.  328  ;  State  v.  Rollins,  2  1  Hemp.  181. 

Fost.  528.      See  McGuire  v.  State,  »  Vaden  v.  Ellis,  18  Ark.  355. 

1  Ala.  S.  C.  69;  p.  163.  ^  Dillingham  v.  Skein,  1  Hemp. 

2  Miles  V.  Rose,  1  Hemp.  37.  181. 

an  elector  unless  he  is  a  resident;  residence  depends  upon  an  intentio*' 

as  well  as  fact,  and  mere  inhabitancy  for  a  short  period,  wit>' 

,        _v^  as  TO  con- 
intention  of  acquiring  a  domicile,  does  not  make  a  resuY"       .  .  , 

stitute  an  elector.     People  v.  Peralta,  4  Cal.  1"'',  , ,   ~  ^  „„^„ 

'■  ,  ,  ..uen  been  absent  tor  some 

has  resided  in  the  county  fourteen  days.  "'  „      ,       .        ,  -j    •„  +i,^ 

•^     ,     ,     .    ,.iaon  of  returnmg  to  reside  m  the 

months  from  the  State,  with  the ';,       .  /•      ^        j         ■        

^oide  therein  some  fourteen  days,  is  a  com- 
county,  and^didreturn^ai-^^^^.^^^  ^^^^  ^.^  ^^^^  residence,  and  not  from 
pe  en  jurorj^is^ijP"^^  Stonecifer,  6  Cal.  405.  In  Indiana,  that  a  juror 
•  ^.  ^  Householder  is  a  good  cause  for  challenge.  Lafayette,  &c.  v. 
ilew  Albany,  &c.,  13  Ind.  90.  In  Florida,  the  incompetency  of  a  juror 
because  not  a  householder,  or  because  he  had  not  resided  in  the  county 
more  than  three  months,  is  no  ground  for  new  trial.  Such  objections 
should  be  taken  before  the  juror  is  sworn.  State  v.  Madoil,  12  Fla.  151. 
Mere  tenants  and  occupants,  by  yearly  letting,  of  rooms  used  as  sleeping 
apartments,  are  not  freeholders  or  householders  within  the  meaning  of 
the  statutes  of  Alabama,  so  as  to  be  qualified  to  act  as  jurors.  Aaron 
V.  State,  1  Ala.  (S.  C.)  12.    See  p.  167. 

(a)  An  affidavit  that  one  juror  was  not  sworn  must  aver  that  the 
counsel  was  ignorant  thereof  at  the  trial.  Powell  v.  Haley,  28  Tex.  52. 
And  such  averment  as  to  one  of  the  counsel  is  insufficient,  there  beiug 


166  THE   LAW    OF   NEW    TRIALS.  [CII.  IX. 

§  18.  iSTotwitlistanding  the  instances  above  referred  to, 
in  which  slight  informalities  have  been  disregarded ;  as 
the  general  rule,  it  is  laid  down,  that,  to  support  a  judg- 
ment, it  must  be  founded  upon  a  verdict  delivered  by 
twelve  competent  jurors^  otherwise  there  is  a  mistrial.^  So, 
wherever  the  objection  to  a  juror  would  be  good  cause  of 
challenge  for  favor,  on  an  indictment  for  murder,  if  dis- 
covered in  time,  it  will  be  ground  for  a  new  trial,  if  not 
discovered  till  after  verdict.^  And  upon  a  motion  for  a 
new  trial,  on  the  ground  that  a  prejudiced  juror  was 
called  to  fill  up  the  panel,  after  the  right  of  challenge  had 
been  exhausted  by  the  defendants ;  it  was  held  that  the 
risfht  of  challensce  for  cause  could  not  be  exhausted.^ 

§  19.  Ignorance,  on  the  part  of  the  freeholders  of  a 
magistrate's  court,  of  the  fact  that  a  certain  statute  ap- 
plicable to  the  case  was  still  in  force,  is  sufiicient  ground 
for  a  new  trial  in  a  capital  case.*  Or  the  incompetency 
of  a  juror,  from  mental  or  bodily  disease,  to  perform  his 
duties  intelligently,  if  not  known  to  the  parties  or  the 
co^.<.  dQpi^o;  the  trial.^     Or  the  fact  that  a  iuror  did  not 

'_PorITolroyd,.j.,  ^;^         rj,j.g.        ,  ^^^^^   ^_   Nicholas,   2    Strobli. 

maino,  i  Ijow.  ()o4.  ^  ^,^0 

2  Moaroe  «.  Georgia,  5  Geo.  c.  ""5  Hogsliead  v.  State,  6   Humph. 

3  Alexanders.  Dunn,  5 Ind.  133.  uv        °  >  t- 


nothing  to  show  that  the  applicant  and  his  other  couu.  ,  ^^^^  ignorant 
of  the  fact.  Scott  v.  Moore,  41  Vt.  205.  In  reference  to  lu.  oncient 
practice,  still  retained  in  some  States,  and  rarely  in  terms  abolisheu,  v,c 
determining  the  competency  of  jurors  hy  triers ;  see  Epps  v.  State,  19 
Geo.  102;  People  v.  Dewick,  2  Park.  230.  Triers,  appointed  for  a  juror 
challenged  for  favor,  are  to  decide  whether  the  juror  is  indifferent.  The 
court  should  not  instruct  them  how  they  are  to  find.  People  v.  McMahon, 
2  Park.  633. 

Causes  of  disqualification  are  often  expressly  enumerated  in  the  statute 
law.  But  such  enumeration  is  held  not  to  supersede  other  causes  not 
mentioned.    State  v.  Marshal,  1  Ala.  302. 

As  to  objections  arising  from  the  drawing  of  the  jury,  see  U.  S.  v. 
Stowell,  2  Cui't.  153 ;  People  v.  Thurston,  2  Park.  49. 


en.  IX.]  JURY.      IRREGULARITIES,    ETC.  167 

understand   tlie   English   language  ;i    unless   waived    by 
neglect.^ 

§  20.  Where  a  statute  of  the  State  provided  that  no 
juror  should  be  over  sixty -five  years  of  age;  it  was  held 
that  even  consent  of  the  parties  would  be  no  waiver  of  an 
objection  on  this  ground.^  So  it  is  held  that  this  objec- 
tion may  be  made  after  the  statutory  questions  have  been 
put;  at  least,  where  no  injury  results  to  the  State  there- 
from.^ But  on  the  other  hand  a  statute,  requiring  the 
jury  list  to  be  composed  of  persons  under  sixty,  was  con- 
strued merely  to  create  a  personal  exemption,  and  not  to 
furnish  ground  of  objection  by  the  partie3.X«) 

§  21.  In  Vermont,  a  want  of  freehold  qualification  in 
one  of  the  jurors  is  ground  for  a  new  trial,  if  the  fact 
was  not  known  at  the  trial.^(6) 

§  22.  It  is  sometimes  held  ground  of  new  trial,  that  a 
juror  was  an  alien.''  In  general,  the  point  must  be  held 
to  depend  upon  the  statute  laws  of  each  State,(c)  And 
there  are  numerous  cases  in  which  such  incompetency  is 
not  recognized.*((i) 

'  Lafayette,  &c.  v.  New  Albany,  ^  Sduimaker  ».  Tlie  State,  5  Wis. 

&c.,  13  ind.  90.  334;    Borst   v.    Beecher,    6   John. 

2  Boeti,^e  V.  Landa,  22  Tex.  105.  332  ;  Guykowski  v.  The   People,  1 

3  Sutton  V.  Petty,  2  South.  504.  Scam.  476. 

■«  Thomas  v.  The  State,  27  Geo.  *  Hollingswortli    v.    Duane,     4 

287.  Dall.  353.     See  Com.  v.  Cherry,  2 

5  Breeding  «.  The  State,  11  Tex.  Virg.  Cas.  20  ;  Boyiugton  v.  The 
257.  State,  2  Port.  100 ;  Com.  v.  Smith, 

6  Briggs  V.  Georgia,  15  Verm.  Gl.  9  Mass.  107. 
See  p.  1G5. 


(a)  The  court,  being  satisfied  by  inspection  that  a  juror  is  drun'k,&viA. 
the  prisoner's  counsel  not  disputing  it,  may  set  him  aside  for  cause. 
Thomas  v.  State,  27  Geo.  287. 

{h)  As  to  the  constitutional  privilege  of  having  a  jury  from  the  county, 
see  Shaffer  v.  State,  1  How.  Miss.  238. 

(c)  In  Illinois,  the  disqualification  applies  only  in  capital  cases. 
Greenup  v.  Stoker,  3  Gilm.  202. 

(d)  A  defendant,  having  been  convicted  of  conspiracy,  moved  for  a 
new  trial,  upon  an  affidavit  that  a  special  juror  who  served  on  the  trial 


1G8  THE    LAW    OF    NEW    TRIALS.  [CIL  IX. 

§  23.  A  frequent  ground  of  application  for  a  new  trial 
relates  to  the  mode  of  summoning  or  impanelling  jurors.^ 
It  is  held  that  the  statutes  for  selecting,  drawing,  and 
summoning  jurors  form  no  part  of  a  system  to  procure 
an  impartial  jury  to  parties.^  And  the  formation  of  the 
jury  that  is  to  try  a  cause  is  under  the  direction  and 
within  the  discretion  of  the  presiding  judge.'  Thus  it 
lies  in  the  sound  discretion  of  the  court,  to  permit  a  por- 
tion of  a  jury  to  disperse  before  completing  the  panel.^a) 

§  24.  It  has  heen  held  ground  of  new  trial,  that  the 
juiy  was  summoned  by  an  interested  person  or  by  a 
Avrong  officer.''  But,  on  the  other  hand,  applications  for 
a  new  trial,  founded  on  this  class  of  objections,  have  been 
often  refused.  The  question  usually  turns  upon  minute 
points  of  form,  or  the  construction  of  local  statutes.^(6) 
Tims,  that  the  jury  was  drawn  by  an   officer  without 

'  Seep.  104;  Jennings  ».  Aster,  States.  IMonk,  3  Ala.  415;  Baylis 

5  Duer,  695;  Strauglian  v.  The  «.  Lucas,  Cowp.  112  ;  Boon  «.  the 
State,  16  Ark.  37;  State  v.  Cole,  State,  1  Kelly,  361;  AVoods  v. 
9  Humph.  626.  Rowan,  5  John.  133  ;  IMunshower 

2  Rafe  V.  State,  20  Geo.  60.  v.  Patton,  10  S.  &  R.  334;  Vanan- 

2  Walker  v.  Kennison,  34  N.  II.  ken  v.  Beemer,  1  South.  364. 
257.  ^  See  State  v.  Gillick,  7  Clarke, 

1  Frances  v.  State,  6  Flori.  300.  287  ;  State  v.  Pierce,  ib.  231. 
5  Hugg  v.  Rille,  2   Halst.  435 ; 

was  an  alien,  and  that  the  fact  was  not  known  to  him  till  after  the  trial ; 
but  liic  court  refused  to  set  aside  the  verdict.  Lord  Tenterden,  C.  J., 
remarked  that  he  was  not  aware  that  a  new  trial  had  ever  been  granted, 
on  the  ground  that  the  juror  was  liable  to  be  challenged,  if  the  party 
had  an  opportunity  of  making  his  challenge.     The  King  v.  Sutton,  8  B. 

6  C.  417. 

(o)  A  culpable  irregularity  in  impauolling  a  jury,  which  has  resulted 
in  no  injury  or  prejudice  to  the  prisoner,  is  not  ground  for  a  new  trial,  after 
conviction  of  murder  in  the  first  degree.  Ferris  v.  People,  35  N.  Y. 
125. 

(6)  The  selection  of  jurors  was  held  no  ground  of  new  trial,  in  a  late 
capital  case  in  England.  Mansell  v.  Queen,  8  Ell.  <fe  B.  54.  In  some  of 
the  States,  informalities  of  this  kind  arc  expressly  cured  by  statute. 
Statutes  of  this  natnre  exist  in  Massachusetts,  Wisconsin,  and  Arkansas. 
Sec  Wis.  Rev.  Sts.  c.  27,  §  29  ;  Ark.  L.,  c.  126,  ?  118.  In  Mississippi,  if 
the  name  of  any  person  already  returned  be  omitted  in  the  annual   list, 


CH.  IX.]  JURY.      IRREGULARITIES,   ETC.  169 

authority,  or  by  an  interested  person,  has  been  held  no 
ground  of  new  triah^  Nor  improper  interference  in  the 
selection  of  jurors.^  Or  that  the  names  of  jurors  were 
draicn  from  a  hat.^ 

§  25.  Any  irregularity  on  the  part  of  officers  is  held 
insufficient  ground  of  new  trial,  unless  productive  of  some 
injury;  and  more  especially  unless  the  objection  be  taken 
seasonably.^ 

1  "Wakeman  v.  Spraj^ue,  7  Cow.  U.  S.  v.  Gilbert,  2  Snmn.  19  ; 
720;  Hart  v.  Tallmad2;e,  2  Day,  People  v.  Ransom,  7  "Wend.  417; 
381 ;  Prince  v.  State,  3  St.  &  P.  State  v.  Hascell.  4  N.  H.  352  ;  Com. 
253.  V.  jSTorfolk,  5  Mass.  435 ;  Enos  v. 

2  Qninehang:,  &c.  v.  Tarbox,  20  Dayharsh,  1  Seld.  531  ;  State  v. 
Conn.  510.  Lvtle,  5  Ired.  58 ;  v.  Benton, 

3  Birchard  v.  Booth,  4  Wis.  67.       2  Dev.  &  B.  196.     But  see  State  v. 
*  Com.  V.  Roby,  12  Pick.  496  ;    Powell,  2  Halst.  244. 


or  the  name  of  an  improper  person  be  returned  in  the  annual  list,  or  the 
assessor  should  wholly  fail  to  return  an  annual  list,  as  required  by  law, 
it  will  not  vitiate  the  list  of  jurors,  provided  they  are  regularly  drawn 
from  the  box  number  one.  Sumrall  v.  State,  29  Miss.  202.  The  time 
provided  by  the  statute,  in  California,  in  which  a  jury  shall  be  returned 
by  the  sheriff,  is  directory,  and  not  mandatory.  Mowry  v.  Starbuck,  4 
Cal.  274.  In  California,  no  regular  panel  having  been  drawn  and  sum- 
moned, the  court  ordered  thirty-six  jurors  to  be  summoned,  which  was 
done,  and,  twenty-seven  of  them  appearing,  the  court  caused  their  names 
to  be  placed  in  a  box,  of  which  twelve  were  drawn  to  constitute  a  trial 
jury.  The  defendant  challenged  the  whole  panel,  but  the  court  over- 
ruled the  challenge,  and  the  defendant  excepted.  Held,  that  the  excep- 
tion was  not  well  taken,  for  by  I  16,  p.  355,  Compiled  Laws,  full  power 
is  conferred  upon  the  court  to  enter  such  an  order  as  was  entered  in  this 
case.  People  v.  Stuart,  4  Cal.  218.  In  Georgia,  a  person  belonging  to 
the  grand  jury  list  of  a  county,  who  has  not  been  sworn  on  the  grand 
jury  of  the  term  of  the  court  at  which  a  trial  takes  place,  is  not  disquali- 
fied from  serving  on  the  jury  to  try  offenders.  Rafe  v.  State,  20  Geo.  60. 
Sec.  34  of  the  14th  division  of  the  penal  code  has  no  reference  to  the 
mode  of  selecting,  drawing,  and  summoning  jurors,  but  refers  to  the  act 
charged  as  an  offence.  lb.  In  New  York,  where  a  venire  was  issued  by 
a  justice  of  the  peace  on  the  demand  of  the  defendant,  out  of  court  and 
in  the  absence  of  the  plaintiff,  and  was  delivered  to  the  constable  with- 
out the  knowledge  of  the  plaintiff,  and  before  he  had  any  notice  of  the 
application;  the  justice  was  held  to  be  right  in  setting  aside  the  panel, 
and  issuing  a  new  venire.     Rice  v.  Buchanan,  -11  Barb.  147. 


170  THE   LAW    OF   NEW    TRIALS.  [CH.  IX. 

§  20.  It  lias  been  sometimes  held,  that  a  new  trial  might 
be  ordered  on  the  ground  of  some  mistake  as  to  the  name 
of  a  member  of  the  jury  by  whom  the  cause  was  tried. 
As,  in  the  English  practice,  in  case  of  variance  between 
the  name  of  a  juror  in  i\\Q  venire  facias  and  distringas ^qmH 
in  the  return  of  the  latter.  Thus  where  Tumor  was  sub- 
stituted for  Taverner}  So  where  the  name  returned  was 
Gregory^  and  that  in  the  distringas  George  W.  And  also 
where  the  surname  in  the  venire  was  3Iizael,  and  that  in 
the  distringas  Michael.^  (These  decisions  seem  to  have 
been  predicated  in  part  upon  the  ground  that  the  remedy 
by  attaint  is  not  applicable  where  such  defect  exists  in  the 
jury.)3(ff)  So  one  Richard  Geater,  summoned  and  returned 
as  a  juror,  did  not  attend,  but  one  Richard  Sheppard^ 
verbally  summoned  on  the  crown  side,  did  attend.  Wlien 
Geater  was  called,  Sheppard,  thinking  himself  called, 
answered  and  was  sworn,  neither  party  being  aware  of 
the  mistake  till  after  the  trial.  A  verdict  for  the  plain- 
tiff was  set  aside,  for  the  reason  that  by  St.  3  Geo.  2  all 
the  jurors  should  be  drawn  from  the  box,  but  the  name  of 
Sheppard  was  never  put  in.*  So  a  new  trial  was  ordered, 
where  one  summoned  on  the  jury  failed  to  appear,  but  his 
son,  of  the  same  name,  not  qualified,  attended,  and 
answered  for  the  father,  and  was  sworn  on  the  jury.°  So 
where  the  tales  panel  annexed  to  the  record  contained  the 
name  of  John  Williams,  which  being  called,  a  person 
answered  to  it,  and,  being  sworn,  joined  in  the  verdict. 


•  Fermor  v.  Dorrington,  Cro.  "  Norman «.  Beaumont,  1  Willes, 
Eliz.  233.  434  ;  Barnes,  453. 

2  Cases  cited  in  Cro.  Eliz.  223.  *  Russell  v.  Ball,  Barnes,  455. 

3  Ilassett  t).  Payne,    Cro.   Eliz. 
25G. 

(a)  In  reference  to  the  attendance  of  one  person  as  a  juror  instead  of 
another  who  was  summoned,  see  Russell  v.  Ball,  Barnes,  455;  King  v. 
Tremearne,  5  B.  &  C.  452.  See,  as  to  the  construction  of  an  act  requir- 
ing an  addition  to  bo  given  to  jurors,  that  it  is  merely  directory  ;  Clark 
V.  Commonwealth,  29  Teuu.  121), 


CH.  IX.]  JURY.      IRREGULARITIES,   ETC.  171 

After  the  trial  it  was  discovered  that  the  name  of  this 
person  was  Richard  Henry  Williams,  the  son  of  John, 
that  he  was  but  twenty  years  and  six  months  old,  that  he 
had  not  been  summoned,  and  was  not  qualified  in  regard 
to  property,  having  no  freehold  or  copyhold  estate.  It 
appeared  from  his  affidavit  that  his  father  had  been  sum- 
moned, but,  being  ill,  had  requested  his  son  to  appear  for 
him,  which  he  did,  and,  upon  hearing  his  father's  name 
called,  answered,  went  into  the  box  and  took  the  oath, 
not  knowing  that  there  was  any  harm  in  so  doing.  There 
was  no  collusion  between  the  son  and  the  prevailing  party. 
Held,  there  should  be  a  new  trial. ^  So  where,  in  the 
panel  of  the  venire^  a  juryman  was  wrongly  named  Palus 
Cheal  and  in  the  distringas  and|905^ea  Paulus  CAm^e,  judg- 
ment was  arrested,  an  error  in  the  venire  being  fatal.^  So, 
just  before  the  verdict  was  delivered  in  a  special  jury 
cause,  it  was  discovered  that  one  of  the  special  jurors  im- 
panelled had  been  summoned  in  another  cause,  and  had 
by  mistake  answered  to  a  wrong  name.  The  defendant 
then  objected  to  the  verdict's  being  received,  and  there- 
upon the  judge  oft'ered  to  discharge  the  jury  and  try  the 
cause  over  again.  This,  however,  was  not  assented  to, 
and,  the  plaintifi'  claiming  to  have  the  verdict  taken,  the 
jury  ultimately  returned  their  verdict  in  favor  of  the 
plaintiff.  Held,  a  mistrial;  and,  as  the  defect  had  been 
discovered  and  objected  to  before  the  verdict  was  given, 
the  court  was  bound  to  award  a  venire  de  novo.^ 

§  27.  A  distinction  has  been  sometimes  made  between 
an  error  in  the  surname  and  one  in  the  Christian  name ; 
it  being  held  that  a  man  can  have  but  one  name  of  bap- 
tism, but  may  have  two  surnames.^ 

§  28.  In  the  return  of  the  venire  and  the  distringas  a 

r> '  p^!°^  '"•  Tremaine,  7  Dow.  &  ^  Ashbiirnham    i).    Michael,     4 

,^1      ,„    r.  En£j.  Law  &  Eq.  244. 

^  Lodwell  8  Cas,c.,  5  Co.  43.    See  ^"Displyn  v.  Sprat,  Cro.  Eliz.  57. 

Cotton's  Case,  Cro.  Ellz,.  f>o8. 


172  THE   LAW    OF   NEW    TRIALS.  [CII.  IX. 

juryman  was  named  Samuel^  but  in  the  panel  annexed 
and  the  administration  of  the  oath  Daniel.  But  it  ap- 
peared that  lie  was  the  person  returned,  that  his  name  w^as 
Samuel,  that  he  was  the  only  one  in  the  parish  of  that 
name,  that  the  error  was  committed  by  the  sheriiF's  clerk 
in  copying  the  name  from  the  distringas  to  the  panel,  and 
that  there  was  much  noise  in  the  court-room  when  the 
juror  was  sworn,  and  he  supposed  himself  to  be  called 
Samuel.  Held,  the  record  should  be  amended.'  So  wdiere, 
at  the  summer  assizes  for  Newcastle,  one  Robert  Curry, 
who  served  upon  the  jury,  answered  to  the  name  of  Joseph 
Curry  in  the  sheriff's  panel,  and  had  been  sworn  by  that 
name;  and  it  appeared  that  there  was  a  person  of  the 
latter  name  belonging  to  j^ewcastle  but  not  then  resi- 
dent in  the  town  or  county ;  but  that  Robert  was  qualified 
to  serve  on  juries,  and  had  been  summoned  by  the  sheriff: 
lield,  this  was  a  mere  misnomer  and  cause  of  challenge, 
which  might  have  been  immediately  cured  by  changing 
the  panel,  but  after  judgment  it  could  not  be  assigned  as 
error,  nor  a  fortiori  be  made  ground  for  summary  applica- 
tion for  new  trial.^  So  wdien  the  person  actually  serving 
is  the  party  whose  name  was  taken  from  the  freeholder's 
book,  and  he  stood  as  a  juryman,  and  w^as  returned  in  the 
panel  annexed  to  the  venire.,  and  was  summoned  and 
attended  both  on  a  view  and  at  the  trial ;  the  verdict  will 
not  be  set  aside  for  a  mistake  in  the  Christian  name,  more 
especially  if  it  be  slight,  as  Henry  for  Harry. ^  So,  in 
INIississippi,  a  mistake,  in  the  copy  of  the  special  venire 
furnished  the  prisoner,  in  the  Christian  name  of  a  juror, 
made  through  inadvertence,  and  occasioning  no  injury,  is 
no  ground  for  a  new  trial.^  And  where  the  mistake  was 
in  the  surname,  as  where  the  person  really  intended  for  a 
juror  actually  served,  but  was  returned  and  named  in  the 

'  Roe  V.  Devys,  Cro.  Car.  503.        See  also  Roe  v.  Devys,  r'^^.  Car. 

2  Case  of  a  .Turyman,  13  E.  231.     5G3. 

3  Wrey  v.  Thorn,    Barucs,  454.        ■•  Browning  ;-  otate,  3d  3liss.4*. 


CH.  IX.]  JURY.      IRREGULARITIES,    ETC.  173 

distress  as  Robert  Moore,  but  in  the   panel  and  postea 
Eobert  3Iawre;  held,  no  ground  for  arrest  of  judgment. '(a) 

§  29.  If  one  successfully  challenged  upon  the  principal 
panel  is  afterwards  sworn  as  a  talesman  under  another 
name;  this  is  ground  of  new  trial,  even  though  the  ver- 
dict be  satisfactory  to  the  judge.^  So  where  a  special  jury 
was  ordered,  all  of  whom  failed  to  attend,  and  the  case 
was  tried  by  talesmen ;  held  there  should  be  a  new  trial.^(6) 

'  Countess  of  Rutland's  Case,  5  McGuffie  v.  The  State,  17  Geo.  497 

Co.  42.  State   v.  Lamon,    3    Hawks,  IT-") 

2  Parker  v.  Thornton,  2  Ld.  Ray.  Crawford  v.   Creagh,  1  Ahx.  593 
1410.  State  v.  Bennett,  14  La.  An.  G51 

3  Drumgoold  v.  Home,  1  Hud.  &  Suttle  v.  Batie,  1  Clarke,  141. 
Brooke,  412.     See,  as  to  talesmen, 

(a)  By  St.  21  Jac.  1,  "  No  judgment  shall  be  stayed  or  arrested  after 
verdict,  because  any  of  the  jury  is  misnamed,  either  in  the  surname  or 
addition  in  any  of  the  jury  process,  or  in  any  return  thereupon,  so  as  upon 
examination  it  appears  to  be  the  same  person  who  was  meant  to  be  re- 
turned." As  to  amendment  in  cases  of  this  nature,  see  Cotton's  case, 
Cro.  Eliz.  258;  Hugo  v.  Payne,  Danv.  Abr.  330;  Floyd  v.  Bethell,  ib. 
331.  Where,  in  the  trial  of  a  capital  case,  the  scrolls  had  not  the 
Christian  name  written  in  full,  but  only  the  initials,  no  objection  being 
made  when  the  scrolls  were  put  in  the  hat ;  held,  no  ground  of  challenge. 
State  V.  Simmons,  6  Jones,  309.     See  State  v.  Stedman,  7  Port.  495. 

(&)  In  Missouri,  when  the  regular  panel  of  jurors  is  exhausted,  there 
is  no  law  requiring  any  particular  number  of  talesmen  to  be  summoned, 
or  requiring  a  list  of  them  to  be  given  to  the  defendant.  State  v.  Buckner, 
25  Mis.  167.  In  Indiana,  where  a  cause  was  tried  by  a  jury  summoned 
from  among  the  bystanders,  the  regular  panel  having  been  discharged ; 
held,  such  proceeding  was  authorized  by  the  statute  of  1852,  and  not- 
withstanding the  supplementary  statute  of  1853.  Shaw  v.  Wood,  8  Ind. 
518.  In  Georgia,  the  law  does  not  require  that  the  names  of  tales  jurors 
should  be  in  the  jury-box,  or  that  they  should  have  been  qualified  for 
jurors  at  any  time  previous  to  the  trial.  McGufiie  v.  The  State,  17  Geo. 
497.  Where  an  irregularity  occurred  in  selecting  a  grand  jury,  and,  on 
motion  of  the  prosecuting  officer,  they  were  discharged,  and  the  sheriff 
was  directed  to  summon  a  grand  jury  of  sixteen  qualified  persons  from 
the  bystanders,  which  was  done,  and  the  sheriff  summoned  the  same 
jui'ors  who  had  been  previously  summoned  from  the  several  counties,  to 
whose  personal  qualifications  no  exceptions  were  taken,  and  no  objec- 


174  THE    LAW    OF   NEW    TRIALS.  [CH.  IX. 

§  30.  Eut,  where  two  jurjnieu  de  talihus  circumstantihiis 
were  returned  to  complete  the  panel  for  a  case  on  trial, 
and  sworn  to  give  a  true  verdict  in  all  causes  which  should 
be  committed  to  them,  and  afterwards  sat  in  another 
cause  without  being  returned  and  sworn  anew ;  but 
no  objection  was  made  on  this  ground  before  verdict : 
held,  no  cause  for  a  new  trial.^  So,  where  a  talesman  was 
sworn  on  the  jury  after  being  struck  ofi"  the  list  of  special 
jurors;  held,  if  the  defendant,  against  whom  a  verdict 
was  rendered,  had  been  guilty  of  inattention  in  failing 
to  object  before  the  juror  was  sworn,  he  had  "slipped  his 
time,"  the  objection  came  too  late,  and  a  new  trial  should 
not  be  granted.^  So  it  is  no  ground  for  new  trial,  that 
two  of  the  jurymen  named  in  the  panel  of  a  special  jury 
were  not  summoned  and  failed  to  appear,  and  talesmen 
w^ere  sworn  in  their  place;  no  fraud  or  collusion  being 
suggested.^  So  in  a  capital  case,  although  the  original 
venire  ought  to  be  first  drawn  and  tendered :  yet,  if  the 
judge  should,  where  there  are  only  eleven  of  the  original 
panel,  direct  tales  jurors  to  be  drawn  with  them;  the  pri- 
soner has  no  right  to  a  venire  de  novo  on  this  account,  it 
he  has  had  an  opportunity  of  accepting  or  rejecting  all  of 
the  original  venire.^ 

%  31.    Before  a  jury  is  made  up,  incompetent  jurors 

'  Ilowland  v.  Gi|ford,  1  Pick.  43.        ^  The  King  v.  Hunt,  4  B.  &  Aid. 
2  Jordan  v.  Meredith,  3  Yea.  318.     430. 

»  The  State  c.  Lytle,  5  Ired.  58. 


tions  raised  to  the  array  during  the  proceedings ;  held,  no  ground  of  error. 
Jim  V.  Territory,  1  Wash.  Ter.  76.  In  Kentucky,  the  summoning  of  by- 
standers to  serve  as  grand  jurors,  by  a  person  specially  commissioned  by 
the  court,  instead  of  by  the  sheriff  or  coroner,  is  "substantial  error,"  and 
an  indictment  found  by  a  grand  jury  so  summoned  must  be  quashed. 
The  Code  only  permits  petit  jurors  to  be  so  summoned.  Com.  v.  Graddy, 
4  Met.  (Ky.)  223. 


CII.  IX.]  JURY.      IRREGULARITIES,    ETC.  175 

may  be  discharged  on  motion,  and  others  sworn  in  their 
places. '(a) 

§  32.  It  is  ground  for  a  new  trial,  if  one  of  the  jurors, 
before  the  trial,  makes  declarations  which  clearly  indicate 
that  he  is  not  above  all  exception,  and  that  his  oi)inion  is 
not  a  hypothetical  one,  dependent  upon  the  whole  proof, 
but  formed  exclusively  in  reference  to  the  evidence  which 
shall  be  adduced  on  the  part  of  the  prosecution.^  So,  in 
a  criminal  case,  it  is  good  cause  of  challenge  to  a  petit 
juror,  by  the  State  or  the  prisoner,  that  he  had  formed  an 
unqualified  opinion,  whether  for  or  against  the  prisoner; 
and  there  is  no  error  in  refusing  to  allow  the  juror  to 
state,  in  reply  to  a  question,  whether  such  opinion  was  for 
or  against  the  prisoner.^  So  it  is  immaterial  whence  the 
opinion  is  derived.*  An  opinion  formed  even  from  rumor, 
so  fixed  as  to  require  evidence  to  remove  it,  disqualifies  a 
juror.'  So,  in  California,  it  is  held  to  be  the  intention  of 
the  legislature,  to  exclude  from  the  jury  box  every  one 
who  has  formed  an  unqualified  opinion,  or,  having  formed 
an  opinion,  has  expressed  it  without  qualification.^     As 

'  United  States  v.  Dickinson,  1  Com.  v.  Flanagan,  7  W.  &  S.  415; 

Hemp.  1.     See  Stewart  v.  State,  1  Fouts  «.  The  State,  7  Ohio,  N.S.  471; 

McCook,    06  ;    Hines    v.   State,    8  Goodwin  v.  Blachley,  4  Ind.  438. 
Humph.   597  ;    Isaac  v.  State,  ib.         »  State  v.  Shelledy,  8  Clarke,  477; 

458  •  Com.  V.  Hayden,  4  Gray,  18;  People  v.  Williams,  6  Cal.  200. 
Nolen  V.  State,  2  Head,  520 ;  Wat-        «  State  v.  Gillick,  7  Clarke,  287. 
son  V.  Walker,  33  N.  H.  131.  «  Alfred  v.  State,  37  Miss.  296. 

i  Bishop  V.  The  State,  9  Geo.  121;        «  people  v.  Cottle,  6  Cal.  227. 

(a)  Where  one  of  the  grand  jury,  which  found  the  indictment,  is  a 
member  of  the  jury  which  is  to  try  the  prisoner,  the  prisoner,  if  he  is 
guilty  of  no  laches  in  making  the  discovery,  may  object  to  the  juror  at 
any  time  before  the  evidence  is  introduced,  and  it  seems,  also,  the  court 
may  discharge  him  at  any  time  before  the  verdict  is  rendered.  And  the 
propriety  of  examining  the  juror,  or  taking  his  statements,  on  his  voir 
dire,  is,  to  say  the  least,  doubtful.  Dilworth  v.  Commonwealth,  12  Gratt. 
689.  In  Virginia,  after  the  panel  of  twenty-four  had  been  selected,  the 
prisoner  struck  out  eight,  and  the  court  held  it  immaterial  whether  four 
more  were  struck  off  by  lot,  or  twelve  were  selected  by  lot  to  serve. 
Bristow's  case,  15  Gratt.  634. 


176  THE    LAW    OF    NEW    TRIALS.  [CU.  IX. 

where  a  juror,  in  a  trial  for  murder,  stated  on  his  voir  dire, 
that  he  had  expressed  an  opinion  as  to  the  guilt  or  inno- 
cence of  the  prisoner,  and  that  such  opinion,  when  ex- 
pressed, was  without  qualification.^  So  where  the  testi- 
mony of  a  juror  was,  that  he  had  formed  and  expressed 
an  opinion,  but  that  he  had  no  fixed  opinion,  none  which 
could  not  bo  removed  by  the  evidence.^  So  a  new  trial 
must  be  granted,  where  the  foreman  had  said  that  the 
plaintiff"  should  never  have  a  verdict,  whatever  witnesses 
he  produced.3  Or  where  a  juror  declared,  after  he  was 
summoned  and  before  the  trial,  that,  if  he  should  be  of 
the  jury,  he  did  not  think  he  could  clear  the  accused,  but 
would  bo  bound  to  find  him  guilty.'  Or  where  a  juror  is 
shown  to  have  held,  before  the  last  trial,  a  long  conversa- 
tion about  the  case,  and  to  have  repeatedly  expressed 
decided  opinions  adverse  to  the  losing  party,  unknown 
to  him.=  Or  where  a  juror  had  formed  and  expressed  a 
decided  opinion  adverse  to  the  defendant,  and  the  fact 
was  not  known  to  the  party  or  his  counsel,  after  the  exer- 
cise of  proper  diligence,  by  questioning  the  juror  before 
he  was  sworn.<'(a)  So,  where  a  juror,  at  different  times 
before  the  trial  of  a  prisoner  for  murder,  said  he  be- 
lieved the  prisoner  "  would  be  hung,"  that  he  ought  to 
be  hung,  that  nothing  could  save  him,  that  salt  could  not 
save  him,  and  that  there  was  no  law  to  clear  him ;  and 
subsequently  went  to  the  jail  and  told  him  that  he  ought 
not  to  be  hung,  and,  if  he  were  on  the  jury,  he  should  not 

1  People  V.  Williams,  6  Cal.  20G;  *  Cody   v.  The   State,  3   How. 
People  0.  Cottle,  ib.  227.  Miss.  27. 

2  Cancemi  v.  People,  IG  N.  Y.  (2  ^  Wiggin  v.  Plumcr,  11  Post.  251. 
Smith)  501.  ^  Veimum  v.  Ilarwood,  1  Gilm. 

3  Dent  V.  Hertford,  2  Salk.  645.  659. 


(«)  Oil  the  trial  of  an  indictment,  one  of  the  venire  stated  on  the  voir 
dire,  that  "  he  had  formed  an  opinion  from  having  conversed  with  the 
defendant,  but  that  he  felt  himself  then  in  a  state  of  mind  to  do  justice 
between  the  parties."  Held,  no  ground  fur  a  new  trial,  that  the  court 
ordered  him  to  staud  aside.     Stover  v.  The  State,  4  Mis.  308. 


CU.  IX.]  JURY.      IRREGULARITIES,    ETC.  177 

be  hung;  but  afterwards,  when  sworn  on  the  trial,  touch- 
ing his  competency,  stated  that  he  had  formed  no  opinion, 
and,  no  objection  being  made,  he  was  sworn  on  the  jury 
and  the  prisoner  convicted :  a  new  trial  was  granted.^  So, 
where  a  juror  had  entertained  personal  liostility  towards 
the  losing  party,  and  had  previously,  on  hearing  but  a 
l^art  of  the  evidence  on  a  former  trial,  expressed  an  opinion 
in  favor  of  the  other  party,  and,  on  being  interrogated  at 
the  commencement  of  the  present  trial,  had  declared  him- 
self to  be  impartial,  and  during  the  trial  had  been  drink- 
ing with  the  party  in  whose  favor  the  verdict  was  returned, 
on  his  invitation,  and  at  his  expense;  the  verdict  was  set 
aside,  and  a  new  trial  granted.^  So  where,  on  a  trial  for 
murder.  A.,  one  of  the  jurors,  on  his  examination,  stated 
that  he  had  not  formed  or  expressed  an  opinion,  and,  after 
a  verdict  of  guilty,  a  motion  was  made  for  a  new  trial, 
and  the  affidavits  of  two  persons  were  presented,  one 
stating  that,  some  months  before  the  trial,  A.  said,  that 
from  the  best  information  he  could  get  the  defendants 
ought  to  be  hung,  and  the  other,  that,  some  three  or  four 
months  before  the  trial,  A.  said  that,  according  to  his 
information,  the  defendants  ought  to  be  punished,  or  would 
be  punished.^  So  where  a  juror  swore,  that  he  believed 
himself  to  be  unbiassed,  but  admitted  that  he  told  the 
jury  that  the  defendant  (in  a  murder  case)  was  a  bad  man, 
and  had  beat  a  man  nearly  to  death,  and  then  narrated 
the  beating,  of  which  the  defendant  had  been  acquitted, 
and  admitted  that  the  jury  were  influenced  by  his  state- 
ments." So  the  defendant  was  indicted  and  committed  at 
the  May  term ;  at  the  August  term  that  indictment  was 
quashed,  and  a  new  one  found  by  a  new  jury;  that  was 
also  quashed,  because  the  defendant  had  not  been  given 


4  Sellers  v.  The  People,  3  Scam.  Humph.    411.      Ace.    People    v. 

412.  Plummer,  9  Cal.  398. 

2  Stndley  v.  Hall,  9  Shep.  198.  *  Martiu  v.  State,  35  Geo.  494. 

3  Troxdale     v.     The    State,    9 

12 


178  TIIK    LAW    OF    KEW    TRIALS.  [CH.  IX. 

the  Opportunity  secured  to  him  hy  law  to  challenge  the 
o-rand   jury ;    thereupon    they   were   brought    in    to    be 
challenged,  preparatory   to   finding    a   new    indictment. 
Held,  that    any   juror  who    had   previously  formed   an 
opinion,  though  it  was  in  the  grand  jury  room,  on  the 
finding  of  the  previous  indictment,  was  thereby  disquali- 
fied.'   So  a  juror,  on  his  examination,  stated,  that  "  shortly 
after  the  killing,  and  while  he  was  looking  at  the  body 
of  the  deceased,  he  inquired  of  the  bystanders  how  the 
killimr  occurred;  being  told  that  it  was  done  without 
provocation,  he  said  that  the  prisoner  ought  to  be  hung; 
but  that  he  had  no  opinion  now.     Held,  without  some 
explanation  of  his  change  of  mind,  the  juror  was  incom- 
petent, and  a  new  trial  was  ordered.^     So  where  a  juror 
said  on  the  morning  of  the  trial,  "I  have  formed  my 
opinion  as  to  that  case:  I  believe  he  ought  to  be  hung." 
Again:  "  Damn  him,  he  ought  to  be  hung."     And  this, 
notwithstanding  affidavits  of  other  jurors  that  he  favored 
the  prisoner  at  the  trial.^ 

§  33.  In  a  civil  case,  a  juror,  who  has  formed  an  opinion 
adverse  to  the  general  land  grant  under  which  the  plain- 
tift'  claims,  is  competent.'' 

§  34.  A  person  who  holds  an  opinion,  that  milldams 
generally  in  tliat  im-t  of  the  country  are  nuisances,  and 
that  all  he  is  acquainted  with  are  such,  is  not  a  compe- 
tent juror  for  the  trial  of  an  indictment  for  nuisance  in 
keeping  up  a  milldam,  though  he  states  tliat  he  is  not 
much  acquainted  with  the  dam  in  question,  and  has  not 
formed  or  expressed  any  opinion  regarding  it.* 

§  35.  But  it  is  sometimes  held,  that  the  expression  of 

1  Ftate     V.     Gillick,    7     Clarke  '  Brakefield  v.  State,  1   Sneed, 

(Iowa),  287.  215. 

*  Norflcet  v.  The  State,  4  Snccd,  ^  White  v.  Moses,  11  Cal.  68. 

340.  5  Crippen  v.  People,  8  Mich.  117. 


CH.  IX. 1  JURY.       IRREGULARITIES,    ETC.  179 

-^  m 

an  opinion  by  a  jnror,  before  the  trial,  with  regard  to  the 
guilt  or  innocence  of  the  accused,  although  good  ground 
of  challenge,  is  not  cause  for  granting  a  new  trial  after 
conviction.'(«)  Unless,  even  in  a  capital  case,  it  be  such 
as  to  imply  malice  or  ill-will  against  the  prisoner;'^  and 
be  settled  and  abiding.^  Especially  so  with  the  formation 
and  expression  of  an  o[)inion,  but  not  an  unqualified  one.^ 
So  loose  impressions  and  conversations  of  a  juror,  or  the 
formation  and  expression  of  an  opinion,  as  to  the  prison- 
er's guilt  or  innocence,  founded  upon  rumor,  and  where 
there  is  really  no  bias  or  prejudice.^  As  where  a  juror 
said,  "  If  that  is  so,  the  prisoner  deserves  to  be  hung,"  in 
reply  to  a  statement  of  a  third  person  f  or  "  if  the  evi- 
dence was  as  he  had  heard  it,  the  prisoner  was  guilty  and 
would  be  hung."^  Or  the  affidavit  of  an  ofiicer  that  a 
juryman,  after  the  trial  of  an  action  against  another 
officer,  said  to  him — "One  of  your  brother  oflicers  lately 
was  served  out  in  an  action  of  Ilindle's  (referring  to  this 
case) ;  he  played  me  a  dirty  trick  once,  and  I  was  deter- 
mined to  give  him  a  lift  whenever  I  could."^  So  a  verdict 
in  an  action  for  libel  being  given  for  one  farthing  damages, 
another  verdict  was  rendered  for  £400.  The  defendant 
moved  for  a  new  trial,  upon  an  affidavit  that  a  juryman 
in  the  latter  trial  remarked,  after  the  former  one,  upon 


»  Com.  V.  Flanagan,  7  W.  &  S.  Meigs,  263  ;  Jim  v.  The  State,  15 

415  ;  Simpson  v.  Pitman,  10  Ohio,  Geo.  535  ;  State  v.  Buuger,  14  La. 

365  ;  Romaine  v.  State,  7  Ind.  63  ;  An.  535  ;  Thompson  »."The  State, 

Collier  v.  State,  20  Ark.  36.  24   Geo.    297 ;  State   v.  Davis,  29 

2  State  D.  Fox,  1  Dutch.  566.  Mis.  391  ;    State  v.  Ward,  14  La. 

3  People  V.  King,  27  Cal.  507  ;  An.  673.  See  Alfred  v.  The  State, 
Wright  V.  State,  18  Geo.  383.  2  Swan,  581. 

*  State  V.  Hinkle,  6  Clarke,  380.        ^  Mercer  v.  State,  17  Geo.  146. 

5  Maj'or,  &c.  v.  Goetchins,  7  Geo.        '  Mitchum  v.  The  State,  11  Geo. 

139  ;  Mayor  v.  The  State,  4  Sneed,  615. 
597  ;    Howertou   v.    The   State,    1        ^  Hiudle  v.  Birch,  8  Taun.  26. 

(a)  It  is  no  ground  for  a  new  trial,  that  a  juror  had  formed  an  opinion, 
if  known  to  the  defendant's  counsel  before  the  verdict  was  rendered, 
although  not  known  to  the  defendant  himself.  State  v.  Tuller,  34  Conn. 
280. 


180  THE    LAW    OF    NEW    TRIALS.  [ciI.  IX. 

the  smallncss  oi"  the   damages,  and  further,  "I   sliall  l)e 
on  the  jury  to-morrow,  and  I  will  take  care  that  the  ver- 
dict does  not  go  that  way."     An  affidavit  of  the  juror 
denied  the  latter  part  of  this  statement ;  and  a  new  trial 
was  refused.^     So  where  a  juror  said,  three  years  before, 
that  he  thought  the  party  was  to  blame.^     So  where  a 
juror,  on  a  trial  for  murder,  on  his  voir  dire  stated,  that 
he  had  heard  part  of  the  evidence  before  the  examining 
committee,  and  liad  formed  a  partial  opinion  whicli  might 
influence  his  verdict  to  some  extent,  but  that  he  had  no 
flxcd  opinion  to  influence  his  verdict.     Or  jocularly  re- 
marked, before  the  trial,  to  the  ettect  that  "  the  defendant 
ought  to  have  been  hung  twenty  years  ago,"  without 
reference  to  the  particular  case.^     Or  answers  to  the  ques- 
tion, "Is  your  mind  perfectly  impartial  between  the  State 
and  the  accused?"  "I  think  that  I  am,  as  I  understand 
it ;"  and  the  court  then  asks  if  he  understands  the  ques- 
tion, to  which  he  replies,  "  Yes."^     Or  answered,  "  That 
he  had  not  formed  nor  expressed  an  opinion  in  the  case, 
nor  had  be  formed  or  expressed  any  opinion  as  to  which 
of  the  parties  should  succeed;  that  his  mind  was  free  to 
decide  the  case  according  to  the  evidence,  though  he  had 
formed  an  opinion  as  to  some  of  the  matters  in  contro- 
versy,"*    Or  where  jurors,  on  a  trial  for  murder,  stated 
that  they  had  heard  considerable  talk  about  the  case,  and 
had  read  the  newspaper  accounts  of  it;  that  they  were 
rather  inclined  to  think,  if  what  they  had  read  was  cor- 
rect, the  prisoner  was  guilty  ;  that  they  had  never  talked 
with  any  of  the  witnesses,  nor  formed,  nor  expressed  an 
o[»inion ;  had  no  ill-will  against  the  prisoner  and  could 
give  liim  u  fair  trial,  according  to  the  law  and  evidence.^ 
So  a  juror,  in  a  capital  case,  on  his  examination  on  voir 
dire  by  the  defendant,  stated  that  he  had  formed  and  ex- 

'  Ramadge  «.  Tiyan,  9  Bin<i;. -5;>o.  ^  Morgan  v.  Stevenson,   6  Ind. 

2  Dole  V.  Erskinc,  87  N.  11.  -JIG.  169. 

3  Monroe  v.  State,  2;3  Te.x.  310.  s  Rice  v.  State,  7  Ind.  332. 
^  Thomas  v.  State,  27  Geo.  387. 


CH.  IX.]  JURY.      IRKEGULARTTIES,   ETC.  181 

pressed  an  unqualified  opinion,  &c.  The  defendant  passed 
him  to  tlic  prosecution  for  examination,  on  which  the 
juror  stated  that  his  opinion  was  formed  by  reading  the 
newspapers.  The  prosecution  accepted  the  juror,  but  the 
defendant  requested  leave  to  question  him  further  for 
cause,  which  was  denied,  but  a  peremptory  challenge 
allowed.  Held,  not  to  be  error.^  So  a  juror,  on  a  challenge 
for  favor,  swore  that  he  had  read  part  of  the  newspaper 
accounts  at  the  time,  and  had  formed  an  idea  with  regard 
to  the  prisoner's  guilt  or  innocence ;  that  he  had  no  bias 
either  way ;  that  his  verdict  would  not  be  influenced  by 
his  preconceived  idea,  but  would  be  governed  entirely  by 
the  evidence  produced.  He  was  adj  udged  competent.^  So 
where  a  juror  stated,  that  he  had  not  formed  an  unqualifi.ed 
opinion;  that,  if  what  he  had  heard  should  be  proved 
upon  the  trial,  he  had  an  opinion  made  up;  but  that  he 
thought  he  had  no  prejudice  or  bias  to  prevent  him  from 
hearing  the  evidence,  and  giving  a  verdict  in  accordance 
with  the  law  and  the  testimony.^(a) 

§  36.  The  distinction  is  made,  that,  to  sustain  a  chal- 
lenge/or pr«Hc?);a^  cause ^  on  the  ground  that  the  juror  has 
expressed  an  opinion,  it  must  appear  that  the  opinion  was 
absolute  and  settled ;  it  is  not  enough  that  it  was  hypo- 
thetical and  uncertain.*  If  the  opinion  belong  to  the 
latter  class,  it  is  a  proper  subject  for  a  challenge  to  the 
favor.    Thus,  on  a  trial  for  murder,  a  juror  was  challenged 

•  People  V.   Stonecifer,   6    Cal.  ^  See  People  v.  Symonds,  22  Cal. 

405.  348;    Cora.  «.  Thrasher,  11  Gray, 

2  Sanchez  v.  People,  4  Parker,  57  ;  State  v.  Howard,  17  N.  H.  171; 

535  ;  Wright  v.  State,  18  Geo.  383.  Loweuberg  v.  People,  27  N.  Y.  (13 

»  State  V.  Sater,  8  Clarke,  420.  Smith)  336. 

(a)  Persons  who  have  formed  an  opinion  in  a  criminal  case,  founded 
upon  mere  rumor,  which  it  would  require  evidence  to  remove,  but  who 
could  readily  and  without  hesitation  find  a  verdict  according  to  the  evi- 
dence, although  contrary  to  that  opinion,  are  competent-  State  v.  Cock- 
man,  1  Wins.  (N.  C.)  No.  2,  (L.)  95;  O'Connor  v.  State,  9  Flori.  215; 
Fahenstock  v.  State,  23  Ind.  231. 


182  THE   LAW    OF   NEW    TRIALS.  [CH.  IX. 

by  the  prisoner  for  principal  cause,  on  the  ground  that  he 
had  expressed  an  opinion;  such  challenge  was  traversed; 
and  it  appeared  by  the  testimony  of  the  juror  that  he 
thought  he  liad  an  impression  as  to  the  prisoner's  guilt  or 
innocence;  that  he  rather  thought  he  had  formed  an 
opinion ;  that  he  presumed  ho  had  expressed  it,  and 
thought  he  retained  it;  that  he  had  formed  an  opinion,  if 
the  newspaper  accounts  of  the  transaction,  of  which  he 
had  read  only  a  part,  were  true,  and  that  so  far  as  he 
read  he  gave  them  credence  ;  that  it  might  or  might  not 
require  evidence  to  remove  his  impression  of  the  prisoner's 
guilt,  and  that  he  had  not  arrived  at  any  definite  opinion. 
The  court  overruled  the  challenge.  Held,  on  review,  the 
decision  was  correct.^  So  a  juror,  on  his  examination, 
stated,  that  he  had  an  opinion  on  the  question  of  the  de- 
fendant's guilt  or  innocence,  if  what  he  had  heard  was 
true;  that  he  had  heard  the  story  talked  about,  but  had 
not  read  the  rei)ort  of  the  examination  before  the  coroner, 
or  heard  the  story  from  witnesses  or  those  who  had  heard 
the  testimony ;  and  that  his  opinion  would  not  prevent 
his  hearing  testimony  impartially.  Held,  that  this  was 
cause  for  a  challenge  to  the  favor,  but  not  for  principal 
cause.^ 

§  37.  In  a  capital  case,  a  juror,  after  taking  his  seat  in 
the  box,  stated  to  the  court,  that  he  remembered  having 
formed  and  expressed  an  opinion  as  to  the  prisoner's  guilt. 
The  court  asked  the  counsel  for  the  prisoner  what  they 
proposed  to  do  with  reference  to  the  juror.  They  replied, 
that  "they  had  nothing  to  say."  The  court  discharged 
the  juror,  allowing  the  prisoner  the  same  number  of  chal- 
lenges as  if  the  juror  had  been  challenged  for  cause. 
Held,  that  the  court  erred  in  discharging  the  juror,  on 
the  ground  that  his   incompetency  did  not  sufficiently 


'  People  V.  Stout,  4  Parker,  71  ;        ^  Schseffler  v.  State,  3  Wis.  823. 
Stout  i'.  People,  ib.  132. 


CH.  IX.]  JURY.      IRREGULARITIES,    ETC.  183 

appear.      But  that  the   error  would   not,  after  verdict, 
avail  the  prisoner.' 

§  38.  A  juror  is  not  disqualified  by  having  expressed 
an  opinion  on  a  question  involved  in  the  litigation? 

§  39.  A  juror  having  answered,  "  Yes,"  to  the  question, 
"  Have  you  formed  and  expressed  an  opinion  ?"  it  is  not 
error  for  the  court  to  refuse  to  ask  further  what  is  the 
ground  of  that  opinion  ;  as  the  iirst  answer  clearly  dis- 
qualifies him,  whatever  the  second  might  be.^  , 

§  40.  Where  it  was  charged  that  a  juror  in  a  capital 
trial  had  been  improperly  sworn,  his  answers  indicating 
that  he  had  formed  an  opinion;  but  it  appeared  that  the 
juror  had  not  sat  at  the  trial,  having  been  peremptorily 
challenged  by  the  prisoner,  and  that  the  peremptory  chal. 
lenges  of  the  prisoner  had  not  been  exhausted:  held,  there 
was  no  cause  for  reversal  of  judgment.* 

§  41.  So  where  a  juror,  in  answer  to  the  question,  whe- 
ther he  had  formed  or  expressed  an  opinion  as  to  the 
guilt  or  innocence  of  the  accused,  stated  that  he  had  not, 
but  that  he  had  an  impression  as  to  the  killing,  from 
rumor,  which  it  might  require  evidence  to  remove,  and 
was  pronounced  competent ;  upon  motion  for  a  new  trial, 
it  was  held,  the  juror  having  been  set  aside  under  the 
peremptory  challenge'  of  the  prisoner,  that  a  new  trial 
would  not  be  granted,  unless  it  were  shown,  not  only  that 
the  decision  of  the  court  was  wrong,  but  that  the  prisoner 
exhausted  his  peremptory  challenges,  and  was  liable  to 
have  other  jurors  equally  or  more  objectionable  forced 
upon  him.^ 

'  Norfleet  n.  State,  4  Sneed,  340.         3  Martin  v.  Mitchell,  28  Geo.  383. 
2  Roystou  V.  Royston,  21    Geo.        *  Burrell  v.  State,  18  Tex.  713. 
161.  5  Ogle  y.  State,  33  Miss.  383, 


184  THE    LAW    OF    NEW    TRIALS.  [CIL  IX. 

§  42.  A  person  indicted  is  not  entitled  to  liavc  tlie  jury 
asked,  before  they  are  inii)anelled,  wliether  they  have 
formed  or  expressed  an  opinion  as  to  the  credibility  of  a 
witness,  whose  testimony  is  to  be  relied  on  in  support  of 
this  indictment,  and  who  testified,  and  whose  credibility 
was  in  question,  in  another  case  before  them.  Nor  can 
the  defendant  be  allowed  to  prove,  on  the  trial  of  this 
indictment,  that  the  jury  have  declared  that  they  would 
believe  this  witness.^ 

.  §  43.  The  question  was  asked  a  juror,  "Have  you  or 
not  formed  or  expressed  the  opinion,  from  what  you  have 
heard  of  the  case,  that  the  defendant  is  guilty?"  Held, 
that  the  question  was  not  in  legal  form,  and  that  the 
judge  below,  in  refusing  to  allow  it  to  be  answered,  did 
not  abuse  the  discretionary  power  to  overrule  interroga- 
tories not  in  legal  form.^ 

§  44.  A  juror,  being  asked  if  he  had  formed  an  opinion 
as  to  the  guilt  or  innocence  of  the  prisoner,  answered  that 
he  had,  and,  after  being  challenged  for  cause  by  the  pri- 
soner, said,  in  answer  to  questions  by  the  court,  that  his 
opinion  was  formed  from  rumor ;  and  that  his  mind  was 
as  free  to  act  upon  the  testimony  as  if  he  had  heard 
nothing  about  the  case.  Held,  it  was  error  for  the  court 
to  require  the  prisoner  either  to  accept  the  juror  or  to 
challenge  peremptorily.^ 

§  45.  The  question  was  held  to  be  properly  overruled, 
whether,  if  the  juror  went  into  the  jury-box  in  his  present 
state  of  mind,  he  went  there  with  the  belief  that  the  defend- 
ant was  guilty  of  murder  as  charged  in  the  indictment.* 

§  46.  In  most  of  the  cases  referred  to  on  this  subject, 

'  Commonwealth    v.   Porter,    4        ^  Cotton  v.  State,  31  Miss.  504. 
Gray,  423.  *  State  v.  Ward,  14  La.  An.  073. 

2  "State  v.  Bennett,  13  La.  An. 
(>.j1. 


CH.  IX,]  JURY.      IRREGULARITIES,    ETC,  185 

the  proof  as  to  a  juror's  preconceived  opinion  has  been 
derived  from  an  examination  of  the  juror  himself,  upon 
challenge. 

§  47,  It  has  been  more  especially  held  not  sufficient 
ground  for  a  new  trial,  that  a  juror  had  used  certain  im- 
proper expressions  relative  to  the  cause,  where  the  juror 
had  made  an  affidavit  to  the  contrary,  which  affidavit  was 
before  the  court.^  And  where  a  defendant,  in  a  criminal 
case,  seeks  to  set  aside  a  verdict  against  him  on  this 
ground,  he  must  show  by  the  record,  not  merely  by  his 
own  affidavit,  that  the  juror  was  examined  upon  oath  as 
to  whether  he  had  formed  such  an  opinion.^ 

§  48.  It  is  held,  that  the  question  of  the  impartiality 
of  a  juror  will  not  be  passed  upon  by  the  court  above,  but 
is  one  of  discretion  with  the  court  below,^  Thus  a  juror, 
in  a  murder  trial,  subpoenaed  by  the  government  as  a  wit- 
ness, was  alleged  to  have  said,  that  he  saw  the  crime  com- 
mitted, and,  if  he  were  on  the  jury,  did  not  know  how  he 
could  get  round  finding  the  prisoner  guilty  of  murder; 
but  afterwards  on  affidavit  denied  that  he  saw  the  crime 
committed,  or  heard  any  part  of  the  evidence  till  the  trial. 
Held,  his  being  one  of  the  jury  was  no  ground  of  motion 
for  a  new  trial,  especially  as  the  judge  at  the  trial,  who 
by  statute  took  the  place  of  triors^  passed  upon  the  objec- 
tion and  overruled  it.^  So,  after  a  conviction  for  murder, 
the  prisoner  offered  testimony  that  two  of  the  jurors,  who 
on  their  voir  dire  declared  that  they  had  not  formed  or  ex- 
pressed an  opinion,  had  in  fact  expressed  decided  opinions 
that  the  prisoner  was  guilty  and  ought  to  be  hung ;  of 
which  the  prisoner  alleged  that  he  had  no  knowledge 
until  since  the  verdict ;  and  on  this  ground  he  moved  for 
a  new  trial.     Held,  in  the  general  court  of  Virginia,  that 

•  Conwell  V.  Anderson,  2  Cart.  2  state  v.  Shelledy,  8  Clarke,  4T7. 
122.  Ace.  State  v.  Ayer,  3  Fost.  3  Costly  y.The  State,  19  Geo.  G14. 
301 ;  State  v.  Pike,  20  N.  H.  344.  «  Buchanan  v.  State,  24  Geo.  282. 


186  THE    LAAV    OF    NEW    TRIALS.  [CH.  IX. 

the  inquiry  was  open,  and  the  evidence  admissible,  for  the 
purpose  of  showing  perjury  and  corruption  in  the  jurors, 
but  that  it  belonged  exclusively  to  the  judge  who  presided 
at  the  trial,  to  weigh  the  conflicting  credibility  of  the 
witnesses  adduced  by  the  prisoner  and  of  the  jurors,  and 
to  decide  whether,  in  justice  to  the  prisoner,  and  upon  all 
the  circumstances  of  the  case,  a  new  trial  ought  or  ought 
not  to  be  granted.^ 

§  48a.  On  a  motion  for  a  new  trial,  an  act  Avhich  pro- 
vides, that  "no  exception  to  a  juror  on  account  of  his 
citizenship,  non-residence,  state,  or  age,  or  other  disability, 
shall  be  allowed  after  the  jury  are  sworn,"  does  not  apply 
to  the  objection  that  the  juror  had  formed  or  delivered  an 
opinion  on  the  issue  or  any  material  fact  to  be  tried.^ 

§  49.  A  verdict  will  not  be  set  aside,  because  one  of  the 
jurors  "knew  and  was  aware  of  the  circumstances  con- 
nected with  the  subject-matter  of  the  suit."^ 

§  50.  On  a  conviction  for  murder,  it  was  held  not  good 
ground  for  a  new  trial,  that  there  was  a  great  excitement 
in  the  public  mind  at  the  time  of  the  trial  against  the 
accused.*  But  in  a  late  case,  the  court  above,  reversing 
the  decision  below,  ordered  a  new  trial,  because  the  verdict 
was  given  under  a  state  of  great  excitement.\rt) 

§  50a.  A  new  trial  will  not  be  granted  upon  an  affidavit 

•  Heath's  Case,  1  Robinson,  735.        ♦  Com.  v.  Flanagan,  7  "W.  &  S. 

2  Stale  V.  Ross,  29  Mis.  32.  41."). 

3  Lawrence  v.  Collier,  1  Cal.  37.        ^  People  v.  Acosta,  10  Cal.  195. 

(a)  Where  a  defendant  moves  that  each  juror  be  sworn  as  to  whether 
he  has  formed  or  expressed  an  opinion,  and  offers  to  prove  that  the  case 
is  one  of  great  notoriety,  and  that  there  is  great  prejudice  against  him  ; 
a  refusal  to  grant  sucli  motion  is  no  ground  of  error.  Powers  v.  Pres- 
groves,  38  Miss.  227. 


CH.  IX.]  JURY.      IRREGULARITIES,    ETC.  187 

that  the  foreman  used  undue  influence.^  Or,  as  has  been 
sometimes  held,  that  the  jury  were  prejudiced  and  tam- 
pered with.  (Although,  as  will  he  seen  hereafter  (chap. 
10),  tampering  with  the  jury,  that  is,  communications 
made  to  them  during  the  trial,  is  constantly  recognized 
as  a  ground  of  new  trial ;  and  in  this  case  the  verdict  Avas 
set  aside  as  against  law.-) 

§  51.  That  a  juror  in  a  trial  on  appeal  was  surety  on 
the  appeal  bond,  although  good  ground  of  challenge,  is 
not  alone  suificient  ground  of  new  trial.  But  if  the 
ground  of  challenge  was  unknown  before  the  trial,  a  new 
trial  may  be  granted,  unless  the  ignorance  was  through 
neglect.^(a) 

§  52.  At  common  law,  consanguinity  or  affinity  within  the 
ninth  degree  is  said  to  be  ground  of  challenge  to  a  juror. •*(/;) 

'  Hartwriglit  v.  Badliam,  11  ^  Glover  «.  "Woolsey,  Dudley, 
Price,  383.  Geo.  8o. 

2  Cooke  V.  Green,  11  Price,  736.        '  2  Bl.  Comm.  363  ;  21  Vin.  Abr. 

216. 

(a)  It  is  no  ground  of  new  trial,  that  a  juror  sat  on  a  former  trial  of 
the  same  cause,  unless  the  objection  is  forthwith  made.  Eakman  v. 
Sheaffcr,  48  Penn.  176.  See  State  v.  Sheadey,  15  Iowa,  404.  The 
fact,  that  a  person  presided  as  coroner  at  an  inquest,  does  not  disqualify 
him  as  a  juror  in  the  trial  of  an  indictment  for  the  murder,  when  he 
testifies  that  he  has  neither  expressed  nor  formed  any  opinion.  O'Connor 
V.  State,  9  Flori.  215.  It  is  ground  for  a  new  trial  of  an  indictment  for 
assault  and  battery,  that  a  juror,  previous  to  the  trial,  had  said  to  the 
party  assaulted,  that  he  was  well  acquainted  with  his  case,  and  would  be 
on  the  jury,  and  would  do  all  he  could  for  him ;  though  the  defendant 
did  not  examine  the  juror  upon  voir  dire,  if  the  defendant  was  not 
grossly  negligent,  and  was  not  aware  of  the  conversation  until  after  the 
trial.  Hawks  v.  State,  21  Tex.  526.  Where  the  issues  and  evidence  in 
a  case  are  the  same  as  in  a  previous  case  against  the  same  defendant,  be- 
fore the  same  jury,  the  law  presumes  the  jury  to  be  under  a  disqualify- 
ing bias,  from  their  previous  verdict.  Garthwaite  v.  Tatum,  21  Ark. 
336.  It  is  not  ground  of  challenge  for  cause,  that  the  juror  is  a  brother- 
in-law  of  one  of  the  counsel.     Funk  v.  Ely,  45  Penn.  444. 

(6)  A  person  summoned  as  a  juror,  who  states  in  voir  dire  that  he  is 
related  by  blood  to  the  prisoner,  and  that  he  thinks  he  is  not  so  nearly 


188  THE    LAW    OF   NEW    TRIALS.  [CH.  IX. 

§  53.  "Where  the  relationship  of  a  juror  is  found,  his 
admission  or  exclusion  is  purely  a  question  of  law.^ 

§  64.  A  juror  has  been  set  aside  on  the  ground  of  being 
the  husband  of  a  party's  niece.'  So  where  a  juror  had 
been  the  husband  of  the  deceased  sister  of  a  party  in  an- 
other case,  depending  upon  tlie  same  principles.^  Or  where 
a  juror  was  cousin  to  the  prosecutor.*  So  where  a  juror 
was  cousin  of  the  wife  of  the  defendant,  under  a  statute 
disqualifying  for  relationship  under  the  sixth  degree,  in- 
clusive, a  new  trial  was  granted,  on  the  ground  of  his 
being  allowed  to  serve.  The  court  remark,  "  The  juror 
testified  that  he  had  long  known  the  defendant's  wife,  his 
cousin,  but  that  he  never  knew  the  defendant ;  that  the 
relationship  did  not  bias  his  mind  in  deciding  the  case; 
that  he  had  no  conversation  with  the  defendant;  and  the 
relationship  did  not  occur  to  him  during  the  trial  and 
subsequent  deliberation."^ 

§  55.  It  is  good  cause  of  challenge  to  a  juror  in  a  civil 
case,  that  he  is  the  son-in-law  of  the  surety  for  the  prose- 
cution of  the  suit.^  Or  a  near  relative  to  the  owner  of 
the  slave  indicted.^ 


'  Selioni  V.  "Williams,  G   Jones,        2  nincliman  w.  Clark,  Coxe,  446. 
575.     See   Pierce    v.    Sheldon,    13         3  Banks  i'.  Hart,  ;}  Day,  491. 
John.  191 ;  Hardy  v.  Sprowle,  33        *  Brown  v.  State,  38  Geo.  439. 
Maine,  310 ;  Carwan  v.  Newall,  1        ^  Hardy  v.  Sprowle,  33   Maine, 

Denio,  2.') ;  Higbe  v.  Leonard,  1  ib.  310. 

181  ;   TruUinger  v.  Webb,  3   Ind.        ^  Sehorn  ■».  Williams,   6  Jones, 

198 ;  Dearmond  v.  Dearmond,    10  575. 
Ind.  191.  7  State  v.  Anthony,  7  Ired.  234. 

related  as  second  cousin,  but  that  he  may  be  a  third  cousin,  is  incompe- 
tent. 9  Flori.  215.  The  court  refused  to  set  aside  a  verdict  for  the 
plaintiff  because  he  was  a  first  cousin  of  the  mother  of  a  juror's  wife, 
where  tlic  defendant  did  not  show  that  he  was  ignorant  of  the  relation- 
ship when  the  jury  were  drawn,  when  no  objection  was  made,  although 
his  counsel  made  affidavit  of  his  own  ignorance  at  that  time;  and  where 
it  did  not  appear  that  the  parties  through  whom  the  relationship  existed 
were  living.     Morrison  v.  McKinnon,  12  Flori.  552. 


OIL  IX.]  JURY.       IRREGULARITIES,    ETC.  189 

§  56.  It  lias  boon  licl<l  no  good  ground  of  exclusion, 
that  the  wife  of  a  juror  was  cousin  to  a  party's  father. 
The  decision  proceeded  ujjou  the  ground  of  a  statute 
which  disqualified  judges  and  justices  of  the  peace  within 
the  fourth  degree.^  Or  that  the  sister  of  a  juror  was  wife 
of  a  party's  nephew.^  Or  that  the  juror  was  half-uncle 
of  the  plaintiff's  wife.^  Or  that  the  juror's  wife  was 
cousin  to  the  prisoner's  deceased  wife,  who  had  left  no 
children.'*  Or  that  a  juror's  father  was  the  defendant's 
first  cousin ;  though  it  might  be  a  proper  matter  to  be 
addressed  to  the  discretion  of  the  court,  if  brought  to  its 
notice  in  season.'  Or  that  the  juror's  father  had  married 
the  widow  of  the  defendant's  brother;  the  father  having 
died  before  the  trial.^ 

§  57.  There  will  be  no  exclusion  where  the  juror  is 
equally  related  to  both  parties.^  And  it  is  sometimes  said, 
that  "  the  relationship  must  be  so  near,  as  to  amount,  of 
itself,  to  evidence  of  impartiality  and  fraud. "^ 

§  58.  If  counsel  know,  but  forget  until  after  verdict, 
that  a  juror  was  a  relative  of  one  of  the  parties,  a  new 
trial  will  not  be  granted.^ 


o* 


§  59.  The  time-honored  maxim  in  regard  to  jurors  is: 
"Omni  exceptione  majores."  The  law  contemplates,  that 
each  juror  should  have  a  mind  entirely  free  from  all  bias 
or  prejudice;  and,  if  the  juror  is  prejudiced  in  any  man- 
ner, he  is  not  a  fit  or  proper  person  to  sit  in  the  box.^° 


'  Churchill  y.  Churchill,  12  Verm.  Chase  v.  Jennings,  38  Maine,  44; 

GGl.  Seavy  v.  Dearborn,  19  N.  H.  ojI. 

-  Rank  v.  Shewey,  4  Watts,  218.  ^  Armstrong  v.  Timmons,  3  Ilar- 

3  Eggleston  v.  Smiley,  17  John.  ring.  342. 

133.      "  ^  Eggleston  v.  Smiley,  17  John. 

'  State  V.  Shaw,  3  Ircd.  532.  133. 

5  State  V.   Andrews,   29   Conn.  ^  Cannon   v.   Bullock,    26   Geo. 
100,  106.  431. 

6  Cain  v.  Ingham,  7  Cow.  478.  '°  March  v.  Portsmouth,  &c.,  19 
See   Moses  v.  State,    11    Humph.  N.  H.  373. 

232  ;  Onions  v.  Naish,  7  Price,  20o  ; 


190  THE    LAW    OF    NEW    TRIALS.  [Cll.  IX. 

Prejudice  is  a  state  of  miiid  wliicli,  in  the  e3''e  of  the  law, 
has  no  doLcrees.^  lleiico  where  a  juror  dechircd  in  court, 
that  he  had  such  a  prejudice  resting  on  his  mind  against 
one  of  the  parties  as  wouhl,  he  feared,  prevent  his  doing 
him  justice;  hekl,  it  was  error,  without  furtlier  examina- 
tion, to  pronounce  him  competent.^  So  the  strong  feeling, 
naturally  to  be  expected  of  a  juror  as  assignee  of  the 
plaintifi;  a  bankrupt,  though  the  sum  recovered  by  a  ver- 
dict would  belong  to  the  plaintiff  only,  has  been  held  a 
sufficient  objection.^  And  a  valid  ground  of  objection 
may  consist  in  "kindred,  prejudice,  interest  in  the  ques- 
tion, though  not  in  the  event  of  the  suit."^ 

§  60.  As  we  have  seen,  interest  is  sufficient  to  exclude  a 
juror.^     Except  where  it  is  very  remote.^(a) 

§  61.  The  point  of  interest  has  often  arisen  in  reference 
to  the  inhabitants  of  quasi  coiyorations,  summoned  as 
jurors  in  cases  in  which  those  corporations  were  interested. 

§  62.  It  is  held  that  the  citizens  of  a  county  are  com- 
petent to  try  an  indictment  for  burning  the  county  jail.^ 

§  63.  Inhabitants  of  a  town,  entitled  to  a  moiety  of  the 
sum  to  be  recovered,  are  not  competent  jurors.^     So,  in  a 

'  People  V.  Reyes,  5  Cal.  347.         ville,  &c.,  il).  3fi8  ;  Ferriaiiy  v.  Sel- 

2  McLaren  v.  Birdsong,  24  Geo.  ser,  4  llow,  Miss.  50G  ;  Keck  v. 
265.  Essex,  1  Zabr.  CJG. 

3  2  Waterm.  Cxraliam,  240.  ^  Com.  v.   Carter,  2   Virg.   Cas. 
•»  Per  Sbaw,  C.  J.,  Davis  v.  Al-     310  ;  Gratz  v.  Benner,  13  S.  &  R. 

len,  11  Pick.  466.  HO. 

5  See   Lvnch  v.  Horry,  1   Bay,  '  Phillips  v.  State,  29  Geo.  105. 

229  •  Russell  v.  Hamilton,  2  Scam.  Sec  Reck  v.  Essex,  1  Zabr.  GjG. 

56  ;  Josey  v.  Wilmington,  &c.,  12  «  Wood*.  Stoddard,  2  John.  194. 
Rich.  Law,  134 ;  Bolaud  v.  Green- 


(a)  If  neither  party,  in  a  capital  case,  asks  for  triors  of  the  interest  of 
jurors,  the  court  may  act  as  such.  O'Connor  v.  State,  9  Flori.  215.  In 
Tennessee,  an  aflidavit,  that  a  juror  was  interested  in  the  result  of  a  suit, 
will  not  support  a  motion  for  a  new  trial,  although  such  interest  might 
have  been  good  cause  for  challenge.     Magness  v.  Stewart,  2  Cold.  309. 


en.  IX.]  JURY.      IRREGULARITIES,    ETC.  191 

bastardy  process,  in  Massachusetts,  it  is  ground  of  new 
trial,  after  a  verdict  for  the  complainant,  that  one  of  the 
jurors  was  an  inhabitant  of  the  town  in  which  she  re- 
sides and  has  her  settlement;  the  statutory  provisions  as 
to  the  support  of  illegitimate  children  creating  a  direct 
interest  in  such  inhabitant.'(«)  But  the  objection  was 
not  sustained,  where  the  foreman  of  the  grand  jury,  which 
returned  an  indictment,  was  an  inhabitant  of  the  town 
which  would  be  entitled  to  the  fine.  Parsons,  C.  J.,  re- 
marked, "Every  fine  to  the  use  of  the  commonwealth 
may  aftect  the  interest  of  every  citizen,  as  it  may  lessen 
the  public  taxes.  But  if  citizens  cannot  be  jurors,  no 
offences  can  be  punished  by  fine.  Where  penalties  are 
given  to  counties,  the  inhabitants  may  have  an  interest 
somewhat  greater;  and  where  penalties  accrue  to  towns, 
the  interest  of  the  inhabitants  may  be  a  little  more  affected. 
The  law  must  be  considered  as  repelling  the  objection  of 
interest;  otherwise  the  offence  must  remain  without 
prosecution."^ 

§  64.  It  is  no  ground  for  setting  aside  a  verdict,  that 
one  of  the  jurors  had  been  summoned  as  a  witness  for 


• 


I  Hawes  v.  Gustin,  2  Allen,  403.         ^  Com  v.  Ryan,  5  Mass.  90.    See 

Middletown  v.  Ames,  7  Verm.  169. 

(a)  In  Massachusetts,  it  is  not  necessary,  in  summoning  a  sheriff's  jury, 
to  take  any  jurors  from  the  town  nearest  the  land  in  controversy ;  if  they 
are  all  taken  from  towns  within  the  county,  and  adjoining  the  town  in 
which  the  land  lies.  Shattuck  v.  Stoneham,  6  Allen,  115.  In  a  siiit 
against  a  town  for  an  injury  from  a  defective  highway,  a  juror  who  was 
a  considerable  land-owner  and  tax-payer  of  the  town  sat  in  the  case,  and 
joined  in  a  verdict  against  the  town.  The  town  moved  in  arrest  of  judg- 
ment for  this  cause.  It  appeared  that  the  juror  had  been  such  land- 
owner and  tax-payer  for  several  years.  Held,  the  interest  of  the  juror 
was  a  disqualification,  but  must  be  regarded  as  known  to  the  public 
officers  of  the  town,  and  especially  to  the  selectmen,  its  general  agents, 
whose  duty  it  was  to  make  out  and  certify  the  rate-bills  of  the  town,  and 
that  the  town  had  waived  the  objection,  by  going  to  trial  without  making 
it.     Bailey  v.  Trumbull,  31  Conn.  581. 


192  THE    LAW    OF    NEW    TRIALS.  [CH.  IX. 

tlio  prevailing  party,  and  was  })aiil  witness  fees  wliile 
sitting  as  juror;  if  neither  the  prevailing  party  nor  the 
jury  knew  it  to  be  irregular,  nor  had  any  corrupt  in- 
tention.^ 

§  G5.  A  juror  indicted  for  the  same  offence  (selling 
liquor)  is  partial  and  incompetent.^  So  it  seems,  that  the 
members  of  any  association  of  men,  combining  for  the 
pur})0se  of  enforcing  or  withstanding  the  execution  of  a 
particular  law,  and  binding  themselves  to  contribute 
money  for  that  purpose,  are  incompetent  to  sit  as  jurors 
on  the  trial  of  an  indictment  for  violating  that  law.^ 

§  G6.  But  the  fact  that  a  person  called  as  a  petit  juror, 
on  the"trial  of  an  indictment  in  which  the  defendant  is 
charged  wnth  stealing  a  horse,  was  a  member  of  "  an  asso- 
ciation or  organized  company,  for  the  prosecution  of  per- 
sons generally,  arrested  for  horse-stealing,  will  not  dis- 
qualify the  juror."'*  So  members  of  an  association  to 
prosecute  offences  against  certain  laws,  who  have  each, 
by  subscribing  a  certain  sum  to  the  funds  of  the  associa- 
tion, rendered  themselves  liable  to  pay,  to  the  extent  of 
their  subscriptions,  their  proportion  of  expenses  incurred 
in  such  prosecutions,  are  not  incompetent  to  sit  as  jurors 
on  the  trial  of  such  a  prosecution,  commenced  by  the  agent 
of  the  association,  and  carried  on  at  its  expense,  if  it  does 
not  appear  but  that  they  have  paid  the  subscriptions 
before  this  prosecution  was  commenced.^  So  the  refusal 
of  a  judge  to  ask  persons  summoned  as  jurors,  w^hether 
they  belong  to  any  association  formed  for  the  purpose  of 
enforcing  the  law  under  which  the  defendant  is  indicted, 
is  no  ground  of  exception,  if  the  counsel  disclaims  any 

•  Ilaiulloy  V.  Call,  30  Maine,  9.  *  State  v.  Wilson,  8  Clarke,  407. 

2  McGuire  v.  State,  ;J7  Miss.  869.  '^  Commonwealth    v.    O'Neil,    6 

'•*  Commonwealth    v.    Eagan,    4  Gray,  343. 
Gray,  18. 


en.  IX.]  JURY.      IRREGULARITIES,    ETC.  193 

knowledge   or   suspicion   of    any  such   connection,   and 
assigns  no  ground  for  making  the  request.^ 

I  67.  It  is  held  no  ground  of  new  trial,  that  a  juror  and 
a  party  w^ere  both  free-masons.^ 

§  68.  "Where  a  public  company  is  party  to  an  action, 
whether  the  fact  that  a  juryman  was  a  shareholder  is 
ground  for  granting  a  new  trial  seems  a  doubtful  point. 
It  has  been  held  not  to  be  in  England  and  in  ISTorth  Caro- 
lina, while  the  contrary  has  been  held  as  to  a  stockholder 
in  a  railroad  in  Xew  Hampshire.^ 

§  69.  The  relation  of  landlord  and  tenant,  between  a 
juror  and  the  bondsman  for  prosecution  of  the  suit,  was 
held  no  disqualification.*  Otherwise,  where  a  juror  is 
tenant  to  a  party.^ 

§  70.  One,  who  as  a  grand  juror  has  found  an  indict- 
ment, is  incompetent  to  try  the  case ;  but  it  is  held  that, 
if  the  objection  is  not  taken  until  after  verdict  (though 
as  soon  as  discovered),  a  new"  trial  will  not  be  ordered,  if 
it  appear  as  matter  of  fact  that  he  was  not  really  biassed 
against  the  prisoner.^ 

§  71.  In  a  case  of  necessity,  as  when  the  coroner  of  the 
district  is  a  member  of  the  jury,  and  is  unexpectedly 
required  to  hold  an  inquest,  the  presiding  judge  may  au- 
thorize him  to  withdraw  during  the  trial  of  a  cause,  and 
direct  another  juror,  who  had  heard  the  testimony,  to  be 
substituted  in  his  place;  and  such  act  of  the  presiding 

1  Com.  V.  Thrasher,  11  Gray,  55.         *  Brown  v.  Wheeler,  18  Conn. 

2  Purple  V.  Harton,  13  Weiid.  9.     199. 

See  Burdine  v.  Grand,  1  Ala.  (N.         ^  pipher  v.  Lodi,'e,  16  S.  &  R. 
S.)  :^85.  314;  Harrisburg,  &c.  v.  Forster,  8 

3  Williams    v.    Great    Western,     Watts,  304. 

&c.,  3  H.  &  N.  809  ;  Page  v.  Con-         (■  Bristow's  Case,  15  Gratt.  634. 
tocook,  &c.,  1  Fost.  438;  Brittain 
V.  Allen,  2  Dev.  120. 

13 


194  THE    LAW    OF    NEW    TRIALS.  [CII.  IX. 

judn'C  is  no  ground  for  a  new  trial,  especially  where  no 
oljjection  was  interposed  at  the  time.^ 

» 
§  72.  In  criminal  cases,  disqualification  of  jurors  often 
consists  in  their  entertaining  conscientious  scruples  against 
convict  ing.- 

§  73.  Thus  a  person,  who  states  upon  his  voi?'  dire  that 
he  has  conscientious  scruples  upon  the  subject  of  capital 
punishment,  and  that  they  would  bias  his  judgment,  is 
incompetent  to  act  as  a  juror,  in  a  case  where  the  verdict 
might  subject  the  accused  to  capital  punishment.^  So, 
by  the  laws  of  California,  the  crime  of  grand  larceny  is 
punishable  by  imprisonment  in  the  State  prison  or  death, 
in  the  discretion  of  the  jury ;  and  by  the  same  laws  a  man 
is  declared  incompetent  to  sit  as  a  juror  on  the  trial  of  an 
indictment  for  a  crime,  "punishable  with  death,"  who 
entertains  such  conscientious  opinions  as  would  preclude 
his  finding  tlie  defendant  guilty.  On  the  trial  of  an  in- 
dictment for  grand  larceny,  one  summoned  as  a  juror  was 
asked  by  the  counsel  for  the  State,  whether  he  had  any 
conscientious  scruples  against  the  infliction  of  capital 
punishment?  He  replied  that  he  would  hang  a  man  for 
murder  but  not  for  stealing.  The  court  below  decided 
that  he  was  incompetent.  And  the  court  above  confirmed 
the  decision.^  So  a  juror,  in  a  trial  for  murder,  being 
examined,  said  he  was  opposed  to  punishing  a  man  with 
death,  and  could  not  find  a  verdict  that  a  man  should 
sufier  death,  but  that,  when  the  law  and  evidence  war- 

1  Boland  v.  Greenville,  &c.,  13  Humph.  249;  U.  S.  v.  Cornell,  2 
Rich.  ;]G8.  Mils.  !)1  ;  Lewis  v.  State,  0  Sm.  & 

2  See  Pierce  v.  State,  18  N.  II.  M.  ll."i;  Com.  v.  Webster,  5  Cush. 
530;  Martin  c.  State,  16  Ohio,  ;5Gt ;  2!)5;  Com.  v.  BuzzcU,  10  Pick.  153; 
Williams  v.  State,  .'!  Kellv,  453;  Mercer  7'.  State,  17  Geo.  146. 
People  V.  Damon,  1:5  Wend.  351  ;  »  Williams  v.  State,  32  Miss.  389; 
Clore's  Case,  8<Jratt.600;  Gross ».  State  v.  Howard,  17  N.  H.  171; 
State,  2  Cart.  32!t;  Com.  1'.  Lesher,  Burrell  v.  State,  18  Tex.  713; 
17  S.  &  R.  155;  Ciioutcau  v.  Pierre,  Fahnestock  v.  State,  23  Ind.  281. 
9    Mis.    3  ;    Fletcher    v.    State,    G  *  People  v.  Tauuer,  2  Cal.  257. 


CII.  IX.]  JURY.      IRREGULARITIES,    ETC.  195 

ranted  a  verdict  of  guilty,  lie  could  find  that  the  accused 
be  imprisoned  for  life.  Held,  incompetent.'  So  the  judge 
may  exclude  jurors,  who  state,  in  answer  to  his  questions, 
that  they  have  formed  and  hold  such  an  opinion  of  the 
unconstitutionality  of  the  statute  on  which  the  prosecu- 
tion is  founded,  that,  if  persisted  in,  they  cannot  convict 
the  defendant,  whatever  the  evidence  may  be.^ 

§  74.  It  is  a  good  cause  for  challenging  a  juror  who  has 
been  already  chosen,  but  not  sworn,  that  he  grossly  mis- 
behaved himself  as  a  juror  on  a  former  occasion,  declaring 
that  he  had  tried  to  acquit  every  one  whom  the  judge 
desired  to  convict,  and  would  as  lief  swear  on  a  spelling- 
book  as  on  a  Bible,  because  he  was  a  Tom  Paine  man.^ 

§  75.  In  a  capital  case,  it  is  competent  for  the  State  to 
show  the  disqualification  of  a  juror,  by  interrogating  the 
juror  himself  as  to  any  conscientious  scrjaples  he  may  have 
against  inflicting  the  punishment  of  death.* 

§  76.  But  conscientious  scruples  in  regard  to  capital 
punishment,  which  would  not  prevent  a  juror  from  find- 
ing a  true  verdict  according  to  the  evidence,  are  no  dis- 
qualification: and  since  no  better  means  exist  for  learning 
what  influence  such  scruples  will  have,  than  the  declara- 
tions of  the  juror;  if  he  declare  upon  his  examination 
that  he  has  conscientious  scruples  upon  the  subject  of 
capital  punishment,  and  that  it  would  be  against  his  con- 
science to  render  a  verdict  by  which  a  party  would  be 
subjected  to  the  punishment  of  death,  but  that  he  thinks 
he  could  do  justice  as  between  the  State  and  the  accused; 
he  will  be  competent.^  So,  that  a  juror  is  "opposed  to 
capital  punishment  on  principle,"  does  not  imply  that  he 

'  Driskill  v.  State,  7  Ind.  338.  ^  McFadden?'.Com.,33Penn.  12. 

2  Commonwealth    v.   Austin,    7        *  State  y.  Mullen,  U  La.  An.  570. 

Gray,  51.  ^  Williams  v.  Slate,  33  Miss.  389. 


196  THE    LAW    OF    NEW    TRIALS.  [CII.  IX. 

has  a  conscientious  opinion,  which  would  preclude  him 
from  finding  a  prisoner  guilty  in  a  capital  case.'(rt) 

§  Hja.  On  the  examination  of  a  juror  on  his  voir  dire, 
the  question  was  asked  him,  "In  case  the  defendajit  is 
found  guilty  of  murder,  have  you  made  up  your  mind  as 
to  what  degree  of  punishment  ought  to  be  inflicted  upon 
him?"  Held,  the  question  was  not  properly  put,  and  the 
district  judge  did  not  err  in  refusing  to  allow  it  to  be 
answered.^ 

§  766.  So,  in  a  capital  case,  two  jurors,  being  Quakers, 
expressed  conscientious  scruples  against  sitting  on  the 
jury,  and  were  excused  without  being  sworn  or  aflfirmed 
as  to  their  competency.-'^ 

§  77.  On  the  trial  of  an  indictment  for  murder,  a  juror 
w^as  challenged  by  the  government,  on  the  ground  that 
he  was  opposed  tcf  capital  punishment.  The  juror,  being 
sworn,  said  he  was  opposed  to  capital  punishment,  but  if, 
acting  as  a  juror,  the  evidence  of  guilt  was  clear,  he  should 
find  the  accused  guilty.  The  court  ordered  him  to  take 
his  scat  as  a  competent  juror.  After  other  jurors  had  been 
called,  but  before  any  evidence  had  been  submitted,  the 
same  juror  stated  that  he  had  misunderstood  the  question, 
and  given  a  wrong  answer,  and  that  he  could  not  under 
any  circumstances  find  a  person  guilty  of  murder.  The 
challenge  was  repeated,  and  the  juror  set  aside.* 

§  78.  That  a  juror  has  a  fixed  opinion  against  cajjital 
or  penitentiary  punishments  is  good  challenge  for  cause 

'  People  V.  Stewart,  7  Cnl.  140.  »  U.  S.  v.  Cornell,  2  Mas.  91. 

*  State  V.  Ward,  14  La.  An.  673.        *  People®.  Wilson, 3 Parker,  199. 

(a)  In  Arkansas,  jurors  may  not  be  rejected  because  they  are  opposed 
to  capital  punishment,  unless  they  go  further  and  ))ring  themselves  under 
the  disqualifications  prescribed  by  the  statute,  Dig.  ?  158,  c.  52.  Atkins 
V.  State,  16  Ark.  568. 


en.  IX.]  JURY.      IRREGULARITIES,    ETC.  197 

by  the  State.  If  he  is  accepted  by  the  State  and  after- 
wards by  the  prisoner,  the  State's  right  of  challenge  for 
this  cause  is  lost,  and  cannot  be  revived;  and  if  after- 
wards the  juror  declares  that  he  has  a  fixed  opinion 
against  penitentiary  punishment,  and  the  court  orders  him 
to  stand  aside,  the  judgment  must  be  reversed.'(a) 

•  Stalls  V.  State,  38  Ala.  25. 

(a.)  It  seems,  iu  Georgia,  that  the  act,  authorizing  jurors  to  be  ques- 
tioned on  the  subject  of  entertaining  scruples  as  to  capital  punishment, 
was  intended  to  apply  to  all  trials  taking  place  after  its  passage,  without 
regard  to  the  time  of  the  commission  of  the  offence.  Mercer  v.  State, 
17  Geo.  146. 


198 


THE   LAW    OF   NEW    TRIALS. 


[CH.  X. 


CIIArTER  X. 


JURY.    MISCONDUCT. 


1.  General. 

2.  Eating  and  drinking  ;  use  of 
intoxicating  liquor. 

5.  Sleep.' 

6.  Conversation  concerning  the 
case  ;  statements  of  one  juror  to 
the  rest. 

18.  Custody  of  the  jury. 


19.  Introduction  of  papers  to  the 
jury-room  ;  minutes,  books,  depo- 
sitions, records,  etc. 

37.  Further  instructions  to  the 

40.  Arguments  to  the  jury. 
51.  Separation  of  the  jury. 
63.  Allidavits  of  jurors. 


§  1.  Misconduct,  as  well  as  disqualification,  of  a  jury 
or  jurors,  is  ground  of  motion  for  a  new  trial.'  Though 
the  action  of  the  court,  in  refusing  a  new  trial  on  that 
ground,  is  sometimes  held  not  reversable  in  error. \n) 

§  2.  It  was  the  ancient  rule,  that  a  verdict  was  rendered 
void  by  the  jury's  eating  and  drinking  between  the  charge 
and  the  verdict.^  They  were  required  to  be  kept  "  with- 
out meat  or  drink,  fire  or  candle."-"  And  even  now,  the 
general  rule  is  laid  down,  though  in  a  capital  case,  that, 
"  after  the  jury  are  charged  and  have  left  the  court  to  eon- 
sider  of  their  verdict,  they  are  to  be  kept  by  themselves, 


1  Brister  v.  State,  2G  Ala.  107.  ^  Bro.  Abr.  Verdict,  pi.  17;  Doct. 

2  Ibid.     See  Mathis  v.  State,  18    &  Stud.  158. 
Geo.  343.  »  Co.  Litt.  227. 


[a]  IVIisbeliavior  must  be  gross,  and  snch  as  probably  injured  the 
complaining  party.  AVhclchell  v.  State,  23  Ind.  89.  Or  such  as  to  affect 
the  fairness  and  impartiality  of  the  trial.  Jack  v.  State.  26  Tex.  1.  Aa 
application  for  a  new  trial  on  the  ground  of  misconduct  must  be  sus- 
tained by  affidavit.  Urban  v.  Kraigg,  21  Ind.  174.  The  presumption 
is  that  jurors  perform  their  duty  ;  positive  evidence  of  misconduct  must 
be  introduced.     24  Cal.  31. 


en.  X.]  JURY.      MISCONDUCT.  199 

without  refreshment  and  without  communication  with 
others,  until  they  have  agreed.  Any  departure  from  this 
rule  is  irregularity.  But  it  is  not  every  irregularity 
which  will  render  the  verdict  void."*  But  it  is  now  the 
prevailing  rule,  that  a  verdict  cannot  be  impeached  on 
account  of  the  jury's  eating  or  drinking  after  they  are 
sent  out  and  before  verdict,  unless  it  appear  that  the  re- 
freshments were  furnished  at  the  expense  of  the  prevail- 
ing party.^  (The  subject  will  be  further  considered  in 
connection  with  the  points  of  conversation  with,  or  sepa- 
ration of,  the  jury.) 

§  2a.  The  use  of  intoxicating  liquor  by  jurors  has  often 
been  alleged  as  ground  of  new  trial.'  Thus  a  verdict  was 
set  aside  for  the  introduction  of  intoxicating  liquor  into 
the  room.^  And  if  any  of  the  jury,  more  especially  in  a 
capital  case,  drink  ardent  spirits  during  their  delibera- 
tions, it  is  held  cause  for  a  new  trial. ^  So  if  a  portion  of 
the  jurors  were  intoxicated  during  a  part  of  the  trial 
with  spirits  furnished  by  the  successful  party,  the  verdict 
should  be  set  aside  without  considering  the  evidence.^  So 
the  circulation  of  spirituous  liquors  among  a  jury,  while 

'  Per  Shaw,  C.  J.,  Com.  ?:.  Roby,  Gre2:g  v.  'McDaniel,  4  Harring. 
12  Pick.  496.  3G7."See  Madden  v.  State,  1  Kans. 

2  ]\[unsou's   Case,  1    And.  183  ;     340. 

Duke,  etc.    V.  Wise,   1  Vent.   134  ;  ^  Jones  i\  State,  13   Tex.    138  ; 

Harrison  v.  Rowan,  4  Wash.  C.  C.  People  v.  Douglass,  4  Cow.  26  ;(«) 

32 ;    Purinton    v.    Humphreys,    6  Brant    v.    Fowler,    7    Cow.    562. 

Greenl.  379  ;  Everett  i\  Yonells,  4  (These  cases  in  New  York  are  crit- 

B.  &  Ad.  681.  icized  and   virtually  overruled  in 

3  See  State  v.  Baldy,  17  Iowa,  39.  Wilson  v.  Abrahams,  1  Hill,  207.) 
*  State  V.  Bullard,  16  N.  H.  139;  «  Pelham  ».  Page,  1  Eng.  535. 

(a)  The  court  in  this  case  remarked :  "  Drinking  spirituous  liquor  dar- 
ing the  trial  should  not  be  tolerated  in  any  shape ;  and  we  have  uniformly 
held  that  it  vitiated  the  verdict  in  a  civil  cause,  even  where  the  liquor 
was  given  to  the  jury  by  consent.  It  will  not  do  to  weigh  and  examine 
the  quantity  nor  the  effect.  It  is  uot  at  all  probable  that  either  of  these 
jurors  was  in  the  least  under  the  influence  of  strong  drink;  but.  being 
doubtful  whether  they  may  not  have  drank  something,  we  ought  not, 
especially  in  a  case  of  life  and  death,  to  sustain  the  verdict." 


200  THE    LAW    OF    NEW    TRIALS.  [CH.   X. 

sitting  as  such,  even  with  the  consent  of  the  parties,  is 
cause  for  reversing  the  judgment.^  So  the  use  of  brandy 
as  a  beverage,  by  jurors  while  in  tlie  jury-room,  after  re- 
tiring, is  cause  for  a  new  trial,  although  the  quantity 
drunk  be  small,  and  no  indications  are  shown,  and  no  sus- 
picions are  entertained  by  the  other  jurors,  that  the  jurors 
who  partake  of  it  are  under  any  influence  from  spirituous 
liquors,  and  the  liquor  is  furnished  by  the  attending 
officer,  at  the  request  of  a  juror  complaining  of  illness.- 

§  3.  The  following  somewhat  remarkable  case,  narrated- 
at  length  in  the  opinion  of  the  court,  occurred  in  Tennes- 
see :  "  During  the  investigation  of  the  cause  in  court,  the 
manner  of  the  juror  indicated  him  to  be  in  a  state  of  dull 
and  stupid  abstraction.  At  night,  the  jury  were  taken 
in  care  of  an  officer  to  a  room  in  the  town  to  consider  of 
their  verdict  and  to  be  kept  together.  About  eleven 
o'clock  at  night  the  juror  became  much  indisposed,  and 
was  threatened  with  spasm,  and  on  the  verge  of  an  attack 
of  delirium  tremens.  The  physician  who  usually  attended 
him  on  such  occasions  was  sent  for,  and  he  testifies,  that 
from  the  condition  in  wdiich  he  found  his  patient,  and 
from  the  knowledge  he  had  of  his  case  in  general,  and 
from  attendance  on  him  during  former  attacks,  he  could 
not  have  been  during  the  investigation  of  the  cause  in 
court  in  a  condition  to  have  possessed  himself  intelligently 
of  the  facts  and  circumstances  of  the  case.  In  the  morn- 
ing the  juror  continued  dull  and  stuj)id,  but,  on  taking  a 
draught  of  ardent  spirits  and  breakfasting,  he  seemed 
pretty  well."     ISTew  trial  granted.^ 

§  4.  But  on  the  other  hand  it  has  been  held  no  ground 
of  new  trial,  that  spirituous  liquors  were  furnished  by  the 
officer  to  the  jury  during  the  trial,  of  which  they  drank, 

'  relhani  v.  Pane,  1  En.e^.  5.3").  »  Hon-shcafl     v.    The     State,    6 

2  Leighton  v.  Sari^eut,   11   Fost.     Iliuiiph.  .j'J. 
119. 


CH.  X.]  JURY.      MISCONDUCT.  201 

but  not  to  excess,  or  so  as  to  disqualify  them  for  an  in- 
telligent |)erformancc  of  their  duty.*  Nor  that  the  jury 
drank  ardent  sj.irits  at  their  meals,  daring  the  progress  of 
the  trial,  without  proof  that  they  were  thereby  disquali- 
fied from  duly  considering  the  case.^  Nor  that  jurors 
drink  spirituous  liquors  in  moderation,  between  the  ad- 
journment of  the  court  in  the  evening,  and  its  meeting 
next  morning,  though  upon  the  invitation  of  a  witness  of 
the  commonwealth,  if  it  is  done  in  the  presence  of  the 
sheriif,  and  where  the  invitation  is  merely  intended  as  an 
act  o^  courtesy.^  ]^or  that  the  officer  having  charge  of 
the  jury  has  permitted  any  one  of  them  to  drink  spiritu- 
ous liquor."  Xor  that  the  jury  took  refreshments  after 
they  retired,  unless  furnished  by  the  party  prevailing.^ 
Nor,  in  a  criminal  case,  that  a  juror  complained  of  illness, 
and  the  officer  brought  him  a  bottle  of  liquor,  at  the  sug- 
gestion of  another  juror,  a  physician;  it  rather  appearing 
that  no  one  else  drank,  and  he  a  proper  quantity  only.^ 
Nor  that  a  juror  has  privately  taken,  in  an  ante-room, 
apart  from  and  without  the  knowledge  of  his  fellows,  as 
a  medicine,  for  the  relief  of  a  disease  under  wdiich  he  w^as 
manifestly  laboring,  a  small  quantity  of  spirituous  liquor, 
during  the  deliberations  of  the  jury.^  Nor  that  a  jury- 
man drinks  spirituous  liquors  during  the  trial,  at  his  own 
expense,  and  in  moderate  quantity.^     So  the  introduction 

'  Rowe  V.  The  State,  11  Ilunipli.        ^  Pope  v.  State,  B6  Miss.  121. 
491.  7  Gilmanton  v.  Ham,   38  K.  H. 

2  Stone  V.  The  State,  4  Humph.     108. 

27.  •*  Wilson  r.  Abrahams.  («)  1  Hill, 

3  Thompson's  Case,  8 Gratt.  G37.     207    (ovcrnUing  Braut  jj.  Fowler, 
*  Davis  V.  People,  19  111.  74.  7  Cow.  562). 

5  The  State  v.  Sparrow.  3  Murph. 
487. 

(a)  In  this  case  Bronson,  J.,  remarked :  "  If  one  of  the  jurors  drink  a 
glass  of  spirituous  liquor  while  absent  from  court,  I  cannot  think  it  a 
sufficient  ground  for  setting  aside  the  verdict,  unless  there  is  some  reason 
to  suppose  that  the  juror  drank  to  excess,  or  at  the  expense,  or  on  the 
invitation,  of  one  of  the  parties.  I  agree  that  it  would  be  well  that  all 
men    should    abstain  from  the    use  of  intoxicating  drinks;  but    until 


202  THE   LAW    OF   fEW    TRIALS.  [CIL  X. 

of  cider  into  the  jury  room,  even  in  a  capital  case,  was 
hold  no  ground  of  new  trial.* 

§  5.  It  has  been  held  that  a  new  trial  should  not  be 
granted  u])on  an  affidavit,  "that  during  the  trial,  or  at 
least  a  portion  of  it,  one  of  the  jurors  was  to  all  appear- 
ance asleep."^     Or  because  a  juror  had  a  chill  and  drowse.^ 

§  6.  "  The  utmost  precaution  should  at  all  times  be  ob- 
served to  prevent  any  attempt  to  forestall  the  judgment 
or  to  bias  the  mind  of  a  juror  in  i^eference  to  the  i^erits 
of  any  issue  or  question  which,  in  the  discharge  of  his 
duties,  he  may  be  called  upon  to  decide.  All  trials  by 
jury  ought  to  be  effectually  guarded  against  the  exertion 
of  every  species  of  improper  influence ;  and  the  law  will 
never  allow  a  party  to  derive  any  possible  advantage  from 
it.  It  is  therefore  an  established  and  salutary  rule  of  law, 
that  the  least  intermeddling  with  the  jurors  is  a  sufficient 
cause  for  setting  aside  the  verdict. "•'(^0     More  especially 

'  Com.  ?),  Roby,  12  Pick.  496.  *  Per  Movrick.  J.,  Shea  v.  Law- 

2  PcUiam  V.  Page,  1  Eng.  535.        rence,  1  Allen,  1G8-9. 
*  Baxter  v.  The  People,  3  Gilm. 
368. 

that  sentiment  becomes  nearly  or  quite  universal,  I  think  it  should  not 
be  imposed  as  a  law  upon  a  juror,  in  those  cases  where  he  is  permitted, 
for  a  night,  or  an  hour,  to  go  wheresoever  he  pleases,  without  being  at- 
tended by  an  oflicer.  There  is  no  authority,  ancient  or  modern,  which 
goes  far  enough  to  uphold  such  a  doctrine.  When  there  is  reason  to 
suspect  that  he  has  drank  so  much,  at  his  own  expense,  as  to  unfit  him 
for  the  proper  discharge  of  his  duty,  the  verdict  ought  not  to  stand. 
But  every  irregularity  which  would  subject  the  juror  to  censure,  whether 
in  drinking,  &c.,  should  not  overturn  the  verdict,  unless  there  be  some 
reason  to  suspect  that  the  irregularity  uuiy  have  had  an  influence  on  the 
final  result." 

(a)  It  is  ground  of  new  trial  in  Massachusetts,  if  cither  party  during 
the  term  give  to  a  jury  any  treat  or  gratuity.  Rev.  Sts.,  ch.  95,  s.  31. 
See  Gen.  Sts.  A  jury  were  directed,  upon  the  agreement  of  parties,  to 
seal  up  their  verdict,  and  deliver  it  to  the  odiccr,  and  separate.  They 
did  so ;  and,  before  the  verdict  was  opened,  a  portion  of  the  jury  had 


en.  X.]  JURY.      MISCONDUCT.  203 

the  least  attempt  on  the  part  of  a  prevailing  party  to 
influence  a  juror  is  held  ground  for  a  new  trial.'  And  it 
is  not  necessary  that  the  attempt  shouhl  he  made  hy  a 
party,  nor  by  his  agent,  if  done  in  his  hehalf ;  nor  is  it 
necessary  that  the  jurors  should,  in  fact,  have  been  thereby 
controlled  or  determined  in  the  verdict.^  Thus  any  com- 
munication made  to  the  jury  by  the  prevailing  party, 
while  deliberating,  avoids  the  verdict;  though  it  is  other- 
wise where  the  communication  is  made  by  a  person  not 
interested.'  So  where  a  party,  while  his  case  is  on  trial, 
declares  in  the  presence  and  hearing  of  some  of  the  jurors, 
that  the  testimony  of  a  material  witness  for  his  opponent 
is  utterly  false,  such  statements  will  be  presumed  to  have 
some  effect  upon  the  jury,  and,  although  the  party  swear 
that  he  did  not  know  that  any  of  the  jury  were  present, 
a  verdict  in  his  favor  will  be  set  aside.^  So  the  entertain- 
ment of  a  juror  by  the  counsel  for  the  successful  party, 
while  the  cause  is  pending,  is  held  sutRcient  ground  for  a 
new  trial.^     Or  by  the  prevailing  party  at  his  expense.'' 

§  7.  A  new  trial  was  granted,  where  jurors,  during  the 

1  Hilton  V.  Sonthwick,  5  Sbep.  ^  The  People  v.  Carnal,  1  Parker, 
303;  Tucker  v.  South,  &c.,  5  R.  I.     256. 

558.  *  Cilley  v.  Bartlett,  19  N.  H.  313. 

2  Cohen  v.  Robert,  2  Strobh.  410.  s  Walker  v.  Hunter,  17  Geo.  364. 
See  Hare  v.  The  State,  4  How.  187;  «  Walker  v.  Walker,  11  Geo.  203; 
Boles  V.  The  State,  13  Sm.  &  M.  Deacon  v.  Shreve,  2  Zabr.  176. 
398 ;  McCann  v.  The  State,  9  ib.  Ace.  Tvrrell  v.  Bristow,  1  Ale.  & 
465;  Thiilin  v.  Den,  4  Har.  76;  Nap.  398.  See  Chadbourn «.  Frank- 
Ritchie  V.  Holbrook,  7  S.  &  R.  458;  lin,  5  Gray,  312. 

State  V.  Hascall,  6  N.  H.  352. 

conversations  with  the  attorney  of  the  plaintiff,  in  whose  favor  the  ver- 
dict was  found,  in  relation  to  it.  Upon  the  verdict  being  read  in  court, 
the  jury  expressed  their  dissatisfaction  with  it,  saying  they  had  made  a 
mistake  in  the  computation  of  interest.  They  were  directed  to  retire, 
and  consider  further  of  their  verdict,  which  they  did,  and  returned  a 
second  verdict  for  a  larger  sum.  Held,  the  conversation,  whatever  it 
might  be,  amounted  to  such  misbehavior,  on  the  part  both  of  the  jurors 
and  the  attorney,  as  to  vitiate  the  second  verdict.  Martin  v.  Morelock, 
32  111.  485. 


204  THE    LAW    OF    NEW    TRIALS.  [CIL   X, 

trial,  went  with  tlie  plaintiff's  witnesses  to  the  locus,  with- 
out the  knowledge  of  tlie  defendant,  for  a  view,  and  expla- 
nation of  tlie  testimony.(a) 

§  8.  But  on  the  other  hand  it  is  hold  that  a  communi- 
cation made  to  a  juror,  without  apparently  heing  intend- 
ed, and  in  its  nature  not  calculated,  to  hias  him,  is  not 
ground  for  a  new  trial.  As  where  a  party,  during  a  tem- 
porary adjournment  of  the  court,  told  one  of  the  jury, 
that  he  had  been  home  to  get  two  deeds,  which  were  after- 
wards used  on  the  trial. ^  So  evidence,  that  the  party's 
agent  conversed  relating  to  the  case  in  the  hearing  of  some 
of  the  jurors,  is  not  sufficient  to  set  aside  the  verdict,  if 
from  the  uncontradicted  affidavits  of  all  the  jurors  it  ap- 
pears that  they  heard  no  remarks,  or  none  which  could 
have  a  bearing  upon  the  case.^  So  where  a  person  in  the 
employ  of  the  successful  party  met  two  of  the  jurors, 
during  the  trial,  at  an  oyster  saloon,  ate  his  oysters  in  the 
same  box  with  them  and  a  fourth  person,  and,  on  coming 
out  first,  })aid  for  the  party  without  their  knowledge;  but 
no  conversation  was  had  concernino;  the  case:  there  beino- 
no  cause  to  believe  that  the  two  jurors  were  influenced  by 
the  occurrence,  held  no  ground  for  a  new  trial. ^  Nor  that, 
pending  the  trial,  and  after  the  court  had  adjouiMiod  for 
the  night,  the  prevailing  party,  Avitli  his  brother-in-law, 
met  some  of  the  jurors  at  a  drinking  shop,  and  treated 
them  to  some  liquor,  and  was  there  seen  in  conversation 
apart  with  one  of  the  jurors.^  ISTor  that  the  defendant, 
during  the  recess  of  the  court,  invited  one  of  the  jurors 

'  White  T:  Wood.  8  Cusli.  413.  *  McCartv  v.  McCarty,  4  Rich. 

2  Smith  «.  Powers,  IT)  N.  II.  r)4fi.  594.      Aec. 'Johnson   v.   Porter,   3 

^  Eiikin  V.  iMorris,  t-tc,  4  Zabr.  IlarriuL;.  o2.'). 
538. 


(a)  A  verdict  will  not  be  set  aside  on  the  ground  that  the  jury  viewed 
the  place  in  question,  in  tiie  absence  of  the  plaintiff,  if  the  plaintiff  had 
received  notice  of  all  that  was  done  at  such  view,  before  the  trial,  and 
had  waived  all  objections  to  it.     Sanderson  v.  Nashua,  44  N.  11.  492, 


en.  X.]  JURY.      MISCONDUCT.  205 

at  his  expense  to  take  a  glass  of  soda  with  him,  and  also 
to  dine  with  hini  at  a  liotel.  It  appeared  that  nothing 
was  said  to  the  juror  about  the  suit,  and  that  he  and  the 
defendant  were  neighl>ors,  and  in  the  habit  of  doing- 
mutual  favors,  and  moreover  that  he  was  in  favor  of  ren- 
dering a  verdict  for  the  plaintiff,  but  by  consent  of  the 
parties  the  opinion  of  a  majority  of  the  jurors  was  taken 
as  the  verdict,  they  being  unable  otherwise  to  agree,  and 
thus  a  verdict  was  rendered  for  the  defendant.'  Jsor  that, 
pending  the  trial,  the  prevailing  party  conveyed  a  juror 
living  on  the  same  road  home  in  his  wagon  several  miles, 
but  no  conversation  relative  to  the  cause  took  place  ; 
although  the  conduct  was  indiscreet  and  incorrect,  and, 
if  persisted  in  after  a  knowledge  of  its  impropriety,  would 
afford  sufficient  cause  for  a  new  trial. ^  ISTor  because,  after 
the  jury  in  a  criminal  case  had  retired  in  the  care  of  an 
officer,  a  person,  in  the  absence  of  the  officer,  entered  the 
room,  and  was  seated  by  invitation  of  the  jury,  but  no 
other  communication  was  held  or  attempted  with  or  by 
him,  and  the  officer  upon  his  return  removed  him;  it  not 
appearing  that  there  was  any  improper  motive  for  the 
act.^  Nor  because,  in  a  capital  trial,  one  of  the  jurors,  in 
presence  of  the  court  and  jury,  asked  a  person  to  give 
him  a  vest.''  ISTor  that  the  jury  passed  through  crowds  of 
people  in  going  to  tlie  hotel  where  they  dined,  or  dined  at 
the  public  table  under  the  charge  of  their  officer;  no  one 
speaking  to  or  tampering  with  them.^  In  this  case  Green, 
J.,  remarked:^  "  AVhere  crowds  of  persons  attend  the 
court  and  fill  the  hotels  (in  many  places  not  very  spacious 
or  well  arranged)  it  is  hot  easy  to  keep  the  jury  always 
entirely  apart  from  others.  The  best  that  can  be  done  is 
to  have  the  jury  kept  together;  to  see  that  none  speak  to 
them,  and  to  secure  them  against  any  attempt  of  others 

'  Vaughn  w.Dotson,  2  Swan,  348.  *  Rowe  o.  The  State,  11  Humph. 

2  Hilton  V.  Soulhwick,  S  Shep.  491. 
303.  5  Ibid. 

3  Luster  c.  The  State,  11  Humph.  6  x^id. 
1G9. 


206  THE   LAW    OF   NEW    TRIALS.  [CH.  X. 

to  tamper  with  them.  If  this  is  done,  the  purity  of  the 
trial  is  preserved,  and  the  verdict  is  not  vitiated  by  any 
slio-ht  irregularities.  But  for  these  irregularities,  the 
officer  permitting  them,  and  the  jurors  guilty  of  them, 
should  be  held  to  account." 

§  9.  It  is  often  held,  particularly  in  the  earlier  cases, 
to  be  ground  of  new  trial,  that  a  juror  himself  talked,  or 
heard  others  talk,  about  the  case.X«)  As  where  the  jury, 
wdiile  in  their  room,  conversed  with  persons  on  the  street, 
in  regard  to  the  case.'^  Or  where  the  son-in-law  of  the 
prevailing  party  spoke  to  a  juror  about  the  case.  In  this 
case  the  court  remarked :  "  It  is  not  necessary  to  show 
that  the  mind  of  the  juror  was  influenced.  Perhaps  it  is 
not  in  his  power  to  say.  If  he  was,  there  is  sufficient 
cause  to  set  aside  the  verdict,  and  if  he  was  not,  and  tjie 
party  who  has  gained  the  verdict  has  a  good  cause,  he  will 
still  be  entitled  to  a  verdict  upon  another  trial."^  So  a 
conversation,  held  by  one  or  more  of  the  jurors,  in  a  trial 
for  felony,  with  a  person  not  a  member  of  the  jury,  nor 
having  charge  of  them,  when  unexplained,  is  good  ground 
for  a  new  trial ;  unless  it  appears  that  no  influence  unfa- 
vorable to  the  prisoner  was  exerted.''  So  where  a  jury- 
man, after  being  charged  with  the  case,  spoke  to  persons 
not  members  of  the  jury  about  the  evidence,  and  expressed 
his  opinion  to  them  as  to  the  rights  of  one  of  the  parties ; 
it  was  held  that  this  was  a  serious  indiscretion,  worthy 
of  judicial  censure,  and  that,  if  others  had  addressed  such 
juror  in  relation  to  the  case,  it  would  have  been  sufficient 
ground  for  a  new  trial.^ 

'  Dana  v.  Koberts,  1  Root,  184 ;  '  Knight  v.  Frceport,  13  Mass. 

Lord  Delanicr's  Case,  4  llarg.  St.  218.                                    «  tt         . 

rpj.  2^2  ^  UWey  v.  The  State,  9  Humph. 

^  Farrar  v.  Ohio,  2  Ohio  (N.  S.),  64G. 

54  5  Foster  v.  Brooks,  G  Geo.  287. 


(a)  Where  a  juror  tallvcd  about  the  case,  and  gave  his  opinion, /wc 
ment  was  arrested.     Bennett  v.  Howard,  3  Day,  223. 


en.  X.]  JURY.      MISCONDUCT.  207 

§  10.  Indictment  for  an  assault  with  intent  to  murder. 
Defence,  insanity.  During  the  trial,  a  juror  for  the  term, 
but  not  trying  the  case,  who  occupied  the  same  room  with 
a  sitting  juror,  said  to  him,  without  any  corrupt  purpose, 
after  they  had  retired  for  the  night,  "that  he  guessed  the 
prisoner  was  a  hard  case,  and  that  he  had  lieard  that  when 
he  was  in  the  book  business  at  the  South,  on  a  person 
refusing  to  take  a  book  that  he  had  subscribed  for,  the 
prisoner  drew  two  pistols,  and  threatened  to  blow  his 
brains  out  if  he  did  not  take  it."  The  juror  testified  that 
he  gave  but  little  attention  to  the  remark,  and  was  not 
aifected  by  it.     Held,  the  verdict  should  be  set  aside. '(a) 

»  State  V.  Andrews,  29  Conn.  100. 

(tt)  But  it  was  held  that  the  same  statement,  made,  during  the  trial, 
in  a  stage-coach,  in  which  two  of  the  jury  were,  with  others,  passengers, 
was  not  sufiBcient  ground  of  new  trial.  The  court  made  the  following 
distinction.  "  These  remarks  may  be  regarded  as  accidental,  the  hearing 
of  which  the  jurors  could  not  have  avoided,  situated  as  they  were,  and 
which  in  fact,  as  they  say,  they  did  not  notice  or  regard.  But  it  is  other- 
wise with  the  conversation  in  the  bedroom.  That  was  neither  accidental, 
unavoidable,  nor  unheeded.  It  was  a  part  of  a  conversation  private,  free, 
and  confidential,  and  which  took  place  after  the  two  jurors  had  retired  to 
rest,  occupying  the  same  room,  if  not  the  same  bed."  Per  Ellsworth,  J., 
State  V.  Andrews,  29  Conn.  104.  After  the  evidence  was  closed,  but 
before  argument  and  during  an  adjournment  of  the  court,  a  juror  called 
upon  the  defendant,  and  obtained  a  printed  copy  of  evidence  in  a 
former  trial,  read  it,  and  noticed  that  the  evidence  of  certain  witnesses 
differed  from  that  given  by  them  on  the  stand.  The  verdict  was  for  the 
plaintiff  for  nominal  damages.  Upon  motion  by  him  to  set  aside  the 
verdict,  held,  the  evidence  of  the  juror  as  to  those  proceedings  was  ad- 
missible, and  a  new  trial  must  be  granted.  Heffron  v.  Gallupe,  55  Maine, 
563.  So  where,  in  an  action  for  the  unlawful  taking  of  a  heifer  and  other 
cattle,  during  an  inspection  by  the  jury  under  |  328  of  the  (Ind.)  Code,  a 
statement  was  made  by  a  witness  for  the  plaintiff,  in  the  hearing  of  one  or 
more  of  the  jurors,  to  the  effect  that  one  or  both  of  the  horns  of  said  roau 
heifer  had  l)cen  filed  or  scraped  to  disguise  or  conceal  the  point  where  it 
had  been  broken,  and  the  verdict,  without  evidence  thereof,  seemed 
founded  on  such  a  theory.  Erwin  v.  Bulla,  29  Ind.  95.  So  where  two 
of  the  jurors  conversed  with  other  persons  about  the  case,  and  discussed 


208  THE   LAW    OF   NEW    TRIALS.  [Cll.  X. 

§  11.  It  will  be  seen,  however,  that  in  some  of  the  cases 
cited  upon  this  ])oiiit  there  have  been  other  elements  of 
objection  to  the  venru't,  than  the  simple  fact  of  a  juror's 
talking  about  the  case.  It  is  remarked  (in  substance), 
"  Scattered  throughout  the  reports,  there  are  far  more 
cases  than  there  should  be,  of  applications  for  new  trials, 
founded  u[i()n  evidence  tending  to  show,  sometimes,  at- 
tem[)ts  by  a  party  to  prejudice  a  jury  in  liis  favor,  and, 
sometimes,  conduct  in  jurymen  indicative  of  a  forgetful- 
ness  of  the  important  responsibilities  resting  upon  them."' 
And  the  w^eight  of  authority  would  seem  now  to  be,  that 
conversation  with  jurymen,  more  especially  unless  held 
when  they  were  together,  is  not  ground  for  a  new  trial.2(rt) 
That,  though  the  jury  be  guilty  of  misconduct  by  conver- 

'  Per  Gilchrist,  J.,  Mcllvaine  v.  Case,  G  Leigh,  G15  ;  Luster  v.  The 

Wilkins,  12  N.  11.  474.  State,  11  Humph.  IG'J;  Rome  v.  The 

^  Davis  r.  Taylor,  2  Chit.  R.  2G8;  Stale,  ib.  491. 
Parker's  Case,  2  RoUe,  R.  85;  Hall's 


its  merits,  and  commented  upon  the  evidence,  in  presence  of  a  number 
of  persons  at  table,  and  erroneously  said  tliat  the  defendant,  sworn  as  a 
witness,  had  contradicted  himself.  Blalock  v.  Phillips,  38  Ga.  216.  So 
where  a  party  pays  unusual  civilities  and  attentions  to  the  jurors,  and 
"  treats"  them,  and  behaves,  in  general,  so  as  to  excite  a  reasonable  sus- 
picion that  this  is  done  for  the  purpose  of  influencing  the  verdict.  Phil- 
lipsburg  V.  Fulmer,  2  Vroom,  52.  So  where,  during  the  progress  of  a 
criminal  trial,  one  of  the  prosecuting  counsel  kept  the  horse  of  a  juror 
over  night  in  his  stable,  free  of  charge;  although  this  was  believed  not  to 
have  influenced  the  juryman's  mind.  Springer  v.  State,  34  Ga.  379.  Uut 
where  jurors,  upon  a  trial  to  which  a  town  was  a  party,  were  treated  to 
eatables  and  drink  by  one  of  the  inhabitants ;  held,  on  motion  for  a  new 
trial,  that  this  must  be  at  the  expense  of  the  town,  or  the  act  of  some 
authorized  agent,  in  order  to  constitute  a  giving  by  a  party  to  the  suit 
within  the  meaning  of  the  (Vermont)  statute.  Carlisle  v.  Sheldon,  38 
Vt.  440.  The  mere  fact  that  a  juror,  pending  a  trial,  and  whilst  the  jury 
were  separated  for  dinner,  expressed  the  opinion  that  the  jury  would  find 
for  the  plaiatifT,  would  not  be  sufficient  ground  for  a  new  trial.  Harrison 
V.  Price,  22  Ind.  1G5. 

(a.)  In  one  case  a  new  trial  was  refused,  even  where  a  number  of  per- 
sons went  into  the  jury-room  and  conversed  with  the  jurors  about  the 
case.     Barbour  v.  Archer,  3  JJibb,  8. 


ClI.  X.]  JURY.      MISCONDUCT.  209 

sation  and  intcrconrse  with  others  diiriiii;-  tlio  progress  of 
the  trial,  sufficient  to  merit  reprimand  or  punishment,  a 
new  trial  will  not  he  granted,  if"  it  appears  that  no  ahuse 
or  injury  resulted  to  the  defendant.'  Thus  the  mere  fact 
that  a  juror,  cvoi  in  a  capital  case,  has  made  a  remark  to 
a  hystander,  or  a  hystander  to  liim,  will  not  entitle  the 
prisoner  to  a  new  trial.-  So  a  juror,  while  the  cause  was 
on  trial,  said  to  one  of  the  plaintiff's  witnesses,  that  the 
trial  had  hcen  a  i)rotracted  one;  that  a  witness  seldom  had 
so  rigid  a  cross-examination  as  A.  (another  witness  for 
the  plaintifi:'),  and  that  he  hore  it  well.  Held  no  ground 
for  setting  aside  the  verdict  for  the  defendants.  In  this 
case  the  court  remarked,  in  reference  to  the  distinction, 
which  we  have  often  had  occasion  to  notice,  between  the 
effect  of  irregularity  on  the  part  of  a  juror  upon  the j/'uror 
himself^  as  ground  of  rejjrimand  or  punishment,  and  upon 
the  case^  as  a  reason  for  setting  aside  the  verdict:  "It  is 
undoubtedly  the  duty  of  courts,  as  far  as  practicable,  to 
preserve  the  purity  of  trials  by  jury;  and  it  is  said  that 
this  can  best  be  effected  by  setting  aside  every  verdict, 
where  a  juror  has  spoken  of  the  cause  contrary  to  his  oath. 
But  it  is  difficult  to  see  how  such  a  result  would  be  pro- 
duced. The  juror  does  not  suffer  by  setting  aside  the 
verdict ;  it  is  the  successful  party  alone  that  is  injured. — 
The  person  to  whom  the  conversation  Av^as  addressed  does 
not  appear  in  any  manner  to  have  acted  in  behalf  of  the 
defendants,  or  to  have  attempted  to  influence  the  mind  of 
the  juror  in  their  favor. "^  So,  during  the  trial,  a  juryman 
said  to  a  witness  for  the  plaintiff",  that  "  they  would  throw 
the  cost  of  the  action  upon  the  defendant,  of  course ;" 
to  which  the  witness  replied,  that  "they  could,  of  course." 
Held,  although  such  conduct  was  a  violation  of  duty,  yet, 
as  it  did  not  show  any  bias  or  prejudice,  it  was  no  cause 
for  granting  a  new  trial  to  the  defendant.     Otherwise,  if 

'  Collier  V.  State,  20  Ark.  36.  3  Pettibonc  v.  PheJiw,  13  Coun. 

2  Epps  V.  State,  19  Geo.  103.  445. 

14 


210  THE  LA^y  of  new  trials.  [cii.  x. 

the  plaintiff  had  been  in-ivy  to  such  conversation.'  So 
that  a  juror,  after  the  verdict  was  agreed  on,  but  before 
it  was  returned  into  court,  tohl  a  person  not  a  jui'or,  that 
it  was  for  the  plaintiff,  is  not  a  sufficient  cause  for  setting 
the  verdict  aside.^  Nor  that  some  of  the  jurors,  after  being 
sworn,  entered  a  grocery,  and  had  conversation  with  vari- 
ous persons,  not  in  rehition  to  the  case,  and  in  presence 
of  the  bailiff  and  of  the  accused.^  Nor  that  a  witness 
for  the  prosecution  made  statements  in  the  presence  of  a 
juror,  not  knowing  him  to  be  present,  prejudicial  to  the 
character  of  the  prisoner.^  Nor  that  idle  words  were 
spoken  to  a  juror  by  a  bystander,  about  one  of  the  parties, 
it  not  ap})earing  that  there  was  any  fault  on  the  part  of 
the  juror,  or  the  prevailing  party .'^ 

§  12.  After  the  jury  in  a  capital  case  had  been  charged 
and  committed  to  the  care  of  an  officer,  they  were  out, 
locked  up  in  the  usual  jury-room,  from  Thursday  at  5 
P.  M.  till  Saturday  at  10  A.  M.  During  that  time  they 
frequently  separated  to  obey  the  calls  of  nature,  one  going 
out  at  a  time  under  the  charge  of  the  officer;  and  one 
juror  did  this  six  times:  during  the  absence  of  the  officer, 
the  other  jurors  remained  locked  up  in  their  room.  One 
juror  went  to  a  drug  store,  one  hundred  and  fifty  yards 
off,  for  some  medicine — being  sick — under  the  charge  of 
an  officer,  and,  in  reply  to  a  question  if  they  had  agreed, 
he  answered  that  they  had  not.  The  jurors  ate  and  drank 
with  the  permission  of  the  court,  and  sometimes  in  vio- 
lation of  the  orders  of  the  court.  They  dropped  notes 
from  the  windows  of  the  room  in  which  they  were  con- 
fined, and  one  juror  stood  on  the  outside  of  the  closed 
door  and  conversed  privately  with  a  stranger  for  more 
than  ten  minutes.  Several  jurors  received  letters,  and 
also  conversed  with  persons  from  the  windows  of  their 

'  Mcllvaine  v.  Wilkins,  12  N.  H.        »  Biirtine  v.  State,  18  Gpo.  534. 

474.  *  The  State  v.  Ayer,  'S  Fost.  301. 

*  Fowler  v.  Tuttle,  4  Fost.  9.  ^  Stewart  v.  Small,  5  Miss.  5io. 


CII.  X.]  JURY.      MISCONDUCT.  211 

room.  Tlie  neijro  servants  and  cliildren  of  some  of  them 
visited  them,  hut  what  was  the  suhject  of  the  notes  and 
the  various  conversations  did  not  appear.  Held,  that 
there  was  a  dilicrence  hetwcen  a  cause  for  a  new  trial  and 
a  case  of  mis-trial:  that  when  tliere  were  any  circum- 
stances, which  cast  a  suspicion  upon  the  verdict  by  show- 
ing that  there  might  have  been  undue  and  improper  influ- 
ences exerted  on  the  jury,  it  was  in  the  discretion  of  the 
presiding  judge  to  grant  a  new  trial ;  but,  if  it  appear  that 
undue  influences  were  exerted  on  the  jury,  there  has  been 
no  trial,  and  the  court  on  appeal  will  grant  a  trial  as  a 
matter  of  law.  In  this  case,  as  it  did  not  appear  that 
undue  influences  had  been  exerted  on  the  jury,  the  court 
could  not  declare  the  verdict  to  be  the  event  of  no  trial, 
but  were  of  the  opinion  that  the  presiding  judge  would 
have  had  good  ground  for  granting  a  new  trial. ^ 

§  12a.  Where  one  of  the  jury,  during  a  trial,  called  to 
a  person  in  the  street,  from  a  window  of  the  court-house, 
and  asked  him  to  tell  his  (the  juror's)  wife  to  send  him 
his  supper;  to  which  the  person  addressed  replied  "well," 
and  afterwards  delivered  the  message,  and  the  supper  was 
sent,  and  the  oflicer  in  charge  of  the  jury  received  it  from 
the  hands  of  the  persons  who  brought  it,  and  sent  them 
to  the  opposite  side  of  the  room  from  the  }ury,  at  a  dis- 
tance of  about  sixty  feet ;  and  it  was  proved  that  there 
was  no  communication  with  the  jury,  except  as  above 
stated :  held,  there  was  no  improper  tampering  with,  or 
sinister  influence  brought  to  bear  upon  the  jury .^ 

§  13.  It  is  held  that  little  weight  is  to  be  attached  to 
the  aflidavit  of  a  juror,  that  he  was  not  influenced  by  de- 
clarations made  in  his  presence.  "  He  may  think  it  is  so, 
and  after  all  his  mind  be  insensibly  affected."  In  New 
Hampshire,  the  aflidavit  will  not  be  received.' 

>  The  State  t).  Tilghman,  11  Ired.        «  Ned  r.  State,  33  Miss.  364. 
513.  »  State  v.  Andrews,  2!)  Coun.  105. 


212  THE    LAW    OF    NEW    TRIALS.  [ci£.  X. 

§  14.  It  is  ground  for  a  new  trial,  that  the  jury  were 
left  by  the  sheritl:?  So  where  the  officer  having  them  in 
charge  spoke  to  the  jury.^  So  Avhere  two  officers  in  charge 
of  tlie  jury  said,  in  their  hearing,  that  it  was  a  worse  case 
than  A.'s,  and  that  ])ul)lic  0})inion  was  against  the  pri- 
soner. And  the  affidavits  of  jurors  were  held  admissible 
to  [jrove  this  conversation. •''  But  a  verdict  will  not  be  set 
aside,  on  the  ground  that  the  constable,  who  had  charge 
of  tlie  jury,  after  they  had  retired,  urged  them  to  give  a 
verdict  for  the  plaintiff,  who  prevailed.^  So  where,  after 
the  jury  had  been  out  eighteen  hours,  the  bailiff  told  them 
that  they  should  have  nothing  more  to  eat  and  no  water 
to  drink,  unless  they  decided  one  way  or  the  other;  but 
he  intended  it  as  a  jest,  and  some  of  the  jurors  so  under- 
stood it,  though  others  were  under  the  impression  that  it 
was  by  order  of  the  court:  held,  it  was  not  tlie  natural 
effect  of  such  a  communication  to  produce  an  impression 
improperly  iniiuencing  the  verdict,  and  therefore  the  con- 
viction should  stand,  though  the  officer  had  acted  impro- 
perly.^(a) 

§  15.  Where  a  jury,  after  having  retired,  had  privately 
examined  a  witness,  a  new  trial  was  granted.^  So  where 
the  jury  after  a  charge  conversed  with  a  witness.'  So 
Avhere  the  justice  deliberated  with  tliejury.^ 


•  Com.  V.  Wormley,  8  Gratt.  712.  State  v.  Brazil,  Geo.  Decis.  pt.  2, 

2  Helms  V.  The  State,  13  S.  &  M.  107  ;  Smith  v.  Graves,  1  Brev.  16. 
500.  See  Heiriek  r.  Blair,  1  John.  Ch. 

3  Ibid.  101 ;  Bediugton  v.  Southall,  4  Price, 
«  Baker  v.  Simmons,  29   Barb.  232. 

198.  ?  The  State  v.  Brazil,  Geo.  Decis. 

5  Pope  V.  Slate,  30  Miss.  121.  pt.  2,  107. 

^  Smith  V.  Graves.  1  Brev.  1(5 ;  ^  Taylor  v.   Betslbrd,  13  John. 

Metcalf 's  Case,  Cro.  Eliz.  189;  Per-  487. 
riue  0.  Van  Note,  1  South.  140;  The 


(a.)  When  a  sheriff  makes  improper  remarks  to  a  juryman,  he  may  be 
fined  for  his  conduct,  but  it  does  not  vitiate  the  verdict.  Reins  v.  People, 
30  III.  256. 


CII.  X.]  JURY.      MISCONDUCT.  213 

§  16.  Upon  the  ground  tliat  such  testimony  is  not  given 
on  oath,  and  is  given  without  the  knowledge  of  those  to 
be  affected  by  it,  and  who  have  therefore  no  opportunity 
of  meeting  and  repelling  it;^  it  has  been  held  sufficient 
reason  for  a  new  trial,  tluit  a  juror  obtained  information 
about  the  subject  of  trial  and  informed  the  others,^  or  tes- 
tified to  his  follows,^  or  stated  tacts,  and  also  spoke  against 
the  losing  part}'.^  JNIore  especially  in  a  criminal  prosecu- 
tion, and  where  the  evidence  as  to  a  material  point  is  con- 
flicting, and  the  statements  influence  the  jury  to  decide 
against  the  prisoner.  And  the  burden  is  not  on  the  pri- 
soner to  show  affirmatively  that  he  was  thereby  preju- 
diced.^ As  where  a  juror  stated  to  his  fellows,  that  he 
had  heard  a  witness,  whose  credibility  was  attacked  on 
the  trial,  sworn  before  the  grand  jury,  and  that  his  state- 
ments were  the  same  as  he  had  made  on  the  trial ;  and  it 
appeared  that  this  statement  had  much  influence  in  pro- 
ducing; the  verdict.^ 

§  17.  But  on  the  other  hand  it  is  held  no  ground  of  new 
trial,  that  two  jurors  said  in  the  jurj'-room,  that  the  party 
who  was  alleged  to  have  paid  a  certain  bond  was  so  accu- 
rate a  man,  that  he  would  not  have  paid  it  without  taking 
a  receipt;  and  that  the  two  jurors  admitted  that  they 
joined  in  the  verdict  for  this  reason  alone.^  IlTor  that  one 
juror  made  declarations  which  discredited  a  witness,  and 
by  which  the  others  were  influenced.*  IN'or  that  the  jurj^ 
heard  the  statement  of  one  of  their  fellows,  in  relation  to 
the  case,  in  their  box;  unless  a  brief  of  the  evidence  be 
filed  in  pursuance  of  the  rule  of  court;  or  if  it  is  manifest 

•  PerTurley,  J.,Douston  ■».  The  523  (a  motion  in  arrest  of  judg- 
State,  6  Humph.  275.  ment). 

2  Brunson  v.  Gorham,  2  Yea.  1G6.        s  Sam  v.  The  State,  1  Swan,  Gl. 

3  Bradley  ».  Bradley.  4  Dall.  112;  ^  Donston  v.  Slate,  6  Humph. 
Booby  V.  The  State,  4  Yerg.  Ill;     275. 

Douston  V.  The  State,  6  Humph.  '  Price  v.  Warren,  1  Hen.  &  M. 

275;  Sam  v.  The  State,  1  Swan,  61;  385. 

Price  V.  "Warren,  1  Hen.  &  M.  885.  s  Purinton     ».     Humphreys,     G 

*  Talmadge  o.  Northrop,  1  Root,  Grecnl.  379. 


214  THE    LAW    OF    NEW    TRIALS.  [CIL  X. 

that  tlioro  wa^  evidence  sufficient  to  sustain  the  findini^s, 
wholly  indejiendent  of  sucli  statement.'  Nor,  in  a  crimi- 
nal case,  u})on  the  unsupitorted  affidavit  of  the  prisoner, 
that  after  the  jur}^  retired  one  of  thein  made  a  statement 
as  of  liis  own  knowledge,  that  the  prisoner  was  a  violent, 
dangerous  man.^  Nor  that,  in  a  criminal  case,  the  judge 
instructed  the  jury,  that  they  might  refer  to  their  own 
personal  knowledge  of  certain  puhlic  outrages;  the  indict- 
ment being  brought  for  a  publication  alleged  to  encourage 
such  outrages.  Lord  Ellenborough  took  tlie  distinction, 
that  the  judge  "made  the  observation  with  reference  to 
what  they  knew  as  a  matter  of  illustration,  that  it  formed 
a  part  of  the  history  of  the  county,  that  such  outrages 
had  been  committed;  but  he  did  not  advise  them  to  rely 
on  that  as  a  source  of  information  on  wdiich  they  were  to 
found  their  verdict,  or  as  forming  a  branch  of  evidence 
of  itself.  "3 

§  18.  Where  a  person,  who  was  not  a  sworn  officer,  was 
permitted  to  go  to  the  jury-room  after  the  jury  had  retired, 
in  a  capital  case,  and  to  have  charge  of  them  in  the  ab- 
sence of  the  bailiff;  it  was  held  sufficient  ground  for  a 
new  trial.^  Otherwise,  where,  after  a  jury  had  retired 
under  the  attendance  of  an  officer,  and  before  the  court 
adjourned,  another  officer  was  sworn  to  attend  upon  them, 
and  after  the  adjournment  a  third  was  sworn  by  the  clerk, 
to  supply  the  place  of  the  second  for  a  few  minutes ;  this 
being  according  to  usage.''(«) 

•  Davis  V.  Lowman,  9  Geo.  504.        *  TTaro    v.    The   State,   4   How. 

2  Nolcn  V.  State,  2  Head,  .WO.  Miss.  187. 

3  King  V.  LuUon,  4  M.  &  S.  532.        ^  The    Commonwealth    v.    Jen- 

kins, Thacher's  Grim.  Cas.  118. 

(a)  The  fact  that  a  juror  was  absent  for  a1)out  half  an  hour  from  the 
jury-room,  after  the  jury  had  retired,  is  not  alone  ground  for  a  new  trial, 
in  a  civil  action.  Perkins  v.  Ermel,  2  Kans.  325.  The  jury  in  a  capi- 
tal case  were  taken,  under  the  charge  of  two  sworn  bailiffs,  to  a  room  in 
a  hotel  three  hundred  yards  from  the  court-room,  to  consider  of  their  ver- 


en.  X.J  JURY.      MISCONDUCT.  215 

§  19.  A  frequent  o^roniid  of  application  for  a  new  trial 
is  the  alleged  introduction  of  im[)roper  papers  to  the  jury- 
room.  Upon  this  subject  it  is  said,  "  The  decisions— are 
contradictory.  Some  of  the  ancient  cases  are  very  strict, 
but  of  late  years  courts  have  been  less  inclined  to  be 
rigid.  "1 

§  20.  A  rule  seems  to  have  formerly  prevailed,  that 
even  papers  put  in  evidence  would  not  go  to  the  jury, 
unless  they  were  papers  under  seal.  The  rule  seems  to 
have  grown  out  of  the  peculiar  and  somewhat  whimsical 

»  Hackley  v.  Hastie,  3  John.  252. 

diet ;  but  it  was  sliown  by  the  testimony  of  the  bailiffs  that  no  person  had 
any  communication  with  them  during  their  retirement.  Held,  that  such 
conduct,  though  illegal  and  improper  on  the  part  of  the  bailiff,  was  not, 
under  the  evidence  as  to  the  absence  of  all  improper  influences,  good  cause 
for  setting  aside  the  verdict.  Caleb  v.  State,  39  Miss.  721.  Upon  motion 
to  set  aside  a  verdict  of  guilty  in  a  capital  case,  it  appeared  that  during  the 
trial,  upon  an  order  of  the  court  directing  the  jury  to  be  secluded  in  the 
usual  manner,  they  had  been  taken  to  a  public  inn,  and  there  allowed  to 
take  some  of  their  meals  in  the  same  room  with  the  other  guests,  but  in 
the  presence  of  the  officers;  that,  on  another  occasion,  a  juror  was  allowed 
to  go  alone  into  his  own  house  and  remain  there  some  minutes,  but,  from 
the  testimony  of  such  juror  himself,  that  he  had  no  communication  with 
other  persons  while  in  the  house  as  to  the  merits  of  the  cause ;  that  an- 
other juror  repeatedly  visited  his  home,  in  company  with  an  officer;  and 
that  members  of  the  jury  drank  ardent  spirits  at  various  times  during 
the  trial,  but  not  to  excess.  Held,  there  was  no  ground  for  granting  the 
motion.  Nor  will  such  a  motion  be  granted,  where  one  of  the  jury  went 
with  an  officer  into  an  oyster  saloon,  and  there  overheard  an  expression 
of  opinion  by  another  person  upon  the  merits  of  the  cause;  and  a  similar 
opinion  was  expressed  by  a  drunken  man  in  the  hearing  of  the  jury;  and 
some  of  the  jury  read  part  of  a  newspaper  report  of  the  evidence  given 
at  the  trial ;  where  there  is  no  reason  to  suppose  that  they  were  influ- 
enced thereby.  State  v.  Cucuel,  2  Vroom,  249.  So  where  the  officer 
permits  a  juror  to  go  into  his  own  house  to  change  his  linen,  if  the  juror 
is  in  sight  of  the  officer  all  the  time,  except  when  in  his  room,  and 
he  remains  there  no  longer  than  is  reasonably  required ;  the  separation 
not  being  attended  with  any  suspicion  of  abuse,  or  of  improper  influence. 
State  V.  O'Brien,  7  R.  I.  336. 


216  THE    LAW    OF    NEW    TRIALS.  [CII.  X. 

sacredness  once  attached  to  seals,  as  appertaining  exclu- 
sively to  men  of  rank  and  property.  It  is  now  no  longer 
in  force,  although  Mr.  Graham  states  the  practice  in  I^Tew 
York  in  his  day  to  have  been,  not  to  allow  papers  to  go 
to  the  jury  without  consent.^ 

§  21.  The  distinction  is  made,  that,  "  if  a  paper  not  in 
evidence  is  delivered  to  the  jury  by  design,  b}'  the  party 
in  whose  favor  the  verdict  is  returned,  the  verdict  shall 
be  set  aside,  even  if  the  paper  is  immaterial.  So  where 
a  paper,  which  is  ca})able  of  influencing  the  jnry  on  the 
side  of  the  prevailing  party,  goes  to  the  jury  by  accident, 
and  is  read  by  them — although  the  jury  may  think  that 
they  were  not  influenced  by  such  paper,  for  it  is  impossible 
for  them  to  say  what  eflect  it  may  have  had  on  their 
minds.  But  where  a  paper  which  might  influence  the 
jury  is  not  read,  it  is  the  same  thing  as  if  it  had  not  been 
delivered  to  them.- 

§  22.  It  has  been  often  held  that  the  delivery  to  the 
jury  of  an  unauthorized  book  or  paper  is  ground  of  new 
trial.^  Thus  although  the  paper  is  said  to  he  a  mere  esti- 
mate^ shown  to  the  jury  by  way  of  ccdculation.\a)  The 
court  remark,  "  "We  know  not  what  eftect  this  paper  may 
have  produced."''    And  where  a  material  paper  was  given 

'  Graham  on  N.  T.  80 ;  Bull.  K  pi.  18  ;  Killen  v.  Listriink,  7  Geo. 

P.  308  ;  Ale.xamlcT  v.  Jamiosou,  5  283  ;  Sliantle's  Case,  2  Morg.  20  ; 

Binn.  2:38.  Bensen  v.  Fish,  6  Greenl.  Ul. 

^  llix  V.  Drurv,  5  Pick.  296;  Kil-  "  Shcaff  v.  Gray,  3  Yea.  273. 

len  V.  Sistrunk.  "7  Geo.  283.  ^  n^jj. 

3  Co.  Lit.  227 ;  Vin.  Abr.  Trial, 

(a)  The  court  refused  to  instruct  the  jury,  after  their  discharge,  to  de- 
liver to  counsel  the  calculations  on  which  their  verdict  was  based,  stating 
that  it  was  discretionary  for  them  to  do  so  or  not.  Held  no  error.  Snel- 
ling  V.  Darrell,  17  Geo.  141.  An  affidavit,  that  the  affiant  is  informed 
and  believes  that  the  jury,  while  deliberating  upon  the  verdict,  read  slips 
of  paper  and  books  containing  evidence  produced  at  a  former  trial,  is  not 
sufficient  ground  for  a  now  trial.     People  v.  Williams,  21  Cal.  31. 


CU.  X.]  JURY.      MISCONDUCT.  217 

to  the  jury  by  mistake,  the  court  would  not  hear  a  juror 
to  show  either  that  it  did  influence  them  or  did  not.'  So 
where  a  paper,  calculated  to  mislead  the  jury  and  influence 
their  finding,  was  found  in  their  room  on  retiring,  and 
read  by  them ;  held  sufficient  ground  for  a  new  trial.^ 

§  23.  But  the  prevailing  doctrine  seems  to  be,  that  it 
is  discretionary  whether  the  jury  shall  take  books  and 
papers.^  And  it  is  remarked  in  a  late  case,  "  It  is  not 
enough  to  say  that  a  paper  was  improperly  sent  to  the 
jury  by  the  adverse  party,  without  his  (the  counsel's) 
knowledge.  It  is  his  duty  to  ascertain  what  papers  are 
sent  to  the  jury,  before  they  leave  the  court;  and  no 
motion  for  a  new  trial  should  be  allowed,  merely  because 
this  duty  has  been  neglected.  It  should  appear — that  the 
paper  in  question  was  sent  to  the  jury  by  some  mistake, 
or  through  some  trick  or  artifice  of  the  opposite  counsel."* 
So  that  the  jury,  without  permission  of  the  court,  took 
to  their  room  papers  which  were  given  in  evidence,  if,  so 
far  as  appears,  the  papers  were  taken  inadvertently,  with- 
out improper  intervention  by  any  person,  and  it  is  not 
shown  that  the  jury  made  any  use  of  them;  is  not  cause 
for  a  new  trial  in  a  criminal  case.^  Xor,  although  irre- 
gular, the  sending  out  with  the  jury  of  a  paper,  which 
contained,  amongst  other  matters,  the  testimony  of  a  de- 
ceased witness  on  a  former  trial,  proved  to  be  correctly 
stated  therein;  under  instructions  that  no  other  part  of 
the  paper  was  in  evidence,  and  two  of  the  jury  testifying 
that  the  paper  was  not  regarded  as  evidence  by  the  jury, 
and  was  not  read  at  all  in  the  box.^  Nor  that  a  paper 
containing  a  computation  of  interest  on  certain  sums 
claimed  by  the  plaintiff"  went  to  the  jury  with  the  papers 

'  Whitney  «.  Whitman,  5  Mass.  498;  Burgliardt  w.  Van  Deuseu.  4 

405.  ib.  378. 

2  Walker  ».  Hunter,  17  Geo.  364.  '  Per  Bell,   C.  J.,  Maynard   v. 

3  Little  V.  Richards's,  57  Penn.  Fellows,  43  N.  H.  250. 

142  ;  Hovev  r.  Thompson,  37  111.         ^  Bcrsch  v.  State,  13  Ind.  434. 
538  ;  Whitiiead  v.  Keyes,  3  Allen,        ^  Riggins  v.  Brown,  12  Geo.  271. 


218  THE   LAW    OF   NEW    TRIALS.  [CIL  X. 

in  the  case,  when  it  does  not  appear  by  wliom  it  was  given 
to  them,  and  no  fraudulent  intent  or  eftbrt  to  practise  on 
tliem  is  shown;  although  no  leave  was  given  to  put  the 
paper  into  the  hands  of  the  jury,  and  the  court  refused  to 
admit  testimony  to  ^Ti'ove  the  correctness  of  the  calcula- 
tion.' Xor,  that  the  jury  read  a  former  verdict  in  the 
case,  but  without  fraud.-  jS^or  that  a  paper,  not  read  upon 
the  trial,  but  the  contents  of  which  had  been  testified  to, 
went  to  the  jury,  among  other  papers  in  the  case;  unless 
the  paper  conveyed  some  information  to  the  jury,  which 
might,  by  some  reasonable  intendment,  have  had  an  intiu- 
ence  upon  the  verdict.'  Nor  that  a  paper  put  in  evidence 
was  delivered  to  the  jury  after  retiring.''  iSTor  where  the 
facts  proved  by  the  paper  were  put  in  evidence,  though 
the  paper  was  not.'  Nor  where  the  paper  is  wholly  irre- 
levant and  immaterial.^  So,  on  the  trial  of  an  indictment 
for  passing  a  counterfeit  bank  note,  the  jury  on  retiring 
found  a  placard  stuck  against  the  wall  of  their  room, 
charaino;  one  of  the  iurors  with  being  himself  a  counter- 
feiter,  and  insinuating  that  he  had  attended  the  court  for 
the  purpose  of  getting  on  the  jury.  The  paper  was  read 
by  the  whole  jury,  and  their  verdict  was,  guilty.  Held, 
that  this  fact  was  no  ground  for  setting  aside  the  verdict, 
unless  it  appeared  that  the  juror  was  prevented  from  a  de- 
li1)erate  exercise  of  judgment,  or  that  the  placard  had  the 
cflect  of  a  menace  upon  him,  or  influenced  the  delibera- 
tions and  verdict  of  the  jury.^  So  where  the  jury,  with- 
out the  knowledge  of  the  court  or  defendant's  counsel, 
sent  for  certain  books  and  papers  which  had  been  referred 

'  Tracy  v.  Card,  2  Ohio  (N.  S.),  Vorm.  51.');  Alexander  v.  Jameson, 

431.  5  Binn.  2:58  ;  Graves  v.  Short,  Cro. 

2  Harriman  v.  Wilkins,  2  Appl.  Eliz.  OIG  ;  Oakley  v.  Steddiford,  3 
93.  John.  252. 

3  Peacham  v.  Carter,  21  Vt.  515;  ^  j^j.^  r,  Eurdctt,  1  Ld.  Ray.  148; 
1  Ld.  Ray.  148.  21  Verm.  515. 

<  Vicary  v.  Farthing,  Cro.  Eliz.  ^  Ijonsdale  y.  Brown,  4  Wash.  C. 

411.      And   see  Lott  v.  Macon,  2  C.  148. 

Strobh.   178;   Hall    v.  Rnpley,   10  ?  ilall's  Case,  6  Leigh,  015. 
Barr,  231  ;   Peacham  i-.  Carter,  21 


CH.  X.]  JURY.      MISCONDUCT.  219 

to  by  a  Avitncr5s,  but  nothing  aiipcured  indicating  any 
design  of  unlUirness;  held,  not  sufficient  ground  for  set- 
ting aside  the  verdict,  although  an  improper  proceeding.^ 

§  24.  As  in  other  cases,  a  party  may  icaive  his  right  of 
excepting  on  this  ground.  Thus  it  is  no  ground  of  new 
trial,  that  a  book  of  records,  containing  matters  not  offered 
in  evidence,  was,  at  the  suggestion  of  the  losing  party,  a 
copy  being  proposed  by  the  other  party,  and  not  by  acci- 
dent or  mistake,  given  to  the  jury  and  examined  by  them.* 

§  25.  The  fact  that  two  jurors,  whilst  impanelled,  read 
a  newspaper  report  of  the  evidence,  which  had  no  influ- 
ence on  their  verdict,  is  not  sufficient  ground  for  a  new 
trial.3  But  where  a  jury,  without  the  knowledge  or  aid 
of  any  one,  procure  a  part  of  a  newspaper,  purporting  to 
contain  the  whole  or  a  part  of  the  charge,  and  use  it  to 
guide  their  deliberations,  although  the  charge  be  accurate, 
the  verdict  will  be  set  aside.* 

§  26.  Delivery  to  the  jury  of  a  map  was  held  ground 
for  a  new  trial. ^ 

§  27.  The  plaintiff's  specification  and  the  defendant's 
offset,  when  properly  filed  in  an  action,  become  part  of 
the  record,  and  may  be  used  and  referred  to  on  the  trial, 
and  may  go  to  the  jury  in  the  same  manner  as  the  writ 
and  pleadings.^ 

§  28.  Rejection  of  a  record,  which  has  been  exhibited 
to  the  court,  but  not  handed  to  the  jury,  is  ground  of 
new  trial.^ 


'  Lott  V.  Macon,  2  Strobh.  178.  <  Farrar  v.  Ohio,  3  Ohio  (N.  S.)» 

2  Alcott  V.  Boston,  ttc,  11  Cush.     54. 

91.  5  Jennings  v.  Warne,  Lee's  R. 

3  United  States  i\  Rcid,  13  How.     116. 

U.  S.  3G1.  *=  Rich  i\  Flanders.  39  N.  II.  304. 

7  Binder  v.  State,  5  Clarke,  457. 


220  THE    LAW    OF   NEAV    TRIALS.  [CII.  X. 

§  20.  It  is  sometimes  held — tliou!j;li  tlic  prevailing  rule 
and  practice  are  und()ul)te(lly  the  otlier  way — that  depo.n- 
tions  sliall  not  go  to  the  jury. ^  More  cs})ecially  if  partly 
excluded  by  the  court.^  So,  if  the  jury  took  out  a  depo- 
sition not  read  on  the  trial,  it  is  ground  of  new  trial. ^  Or 
if  a  bundle  of  depositions  was  delivered  by  counsel  to  the 
jury,  some  of  which  had  not  been  used;  though  the  jury 
swore  that  they  did  not  open  the  bundle.* 

§  30.  But  it  is  not  ground  of  new  trial,  that  a  deposi- 
tion went  to  the  jury,  a  paper  attached  to  which  had  been 
put  in  evidence.'^  Nor  that  depositions  went  to  them  by 
accident,  if  the  jury  state  that  they  were  not  read.^  So 
where  the  judge  gave  permission  to  the  jury  to  take  out 
with  them  a  deposition  that  had  been  read,  objection 
being  made ;  held,  the  proceeding,  if  irregular,  was  not  a 
proper  subject  of  exception,  but  the  remedy  should  have 
been  sought  by  motion.^ 

§  30a.  Where  a  jury,  without  the  fraud  or  agency  of 
the  prevailing  party,  send  for  interrogatories  read  to  them 
at  the  trial,  merely  to  refresh  their  memories,  it  is  no 
ground  for  a  new  trial.^ 

§  31.  Where  a  justice  of  the  peace,  while  the  jury  are 
deliberating  upon  their  verdict,  enters  the  jury -room  at 
their  request,  with  tlie  knowledge  and  consent  of  one  of 
the  parties;  a  consent  l)y  such  party,  that  the  justice  may 
read  to  the  jury  the  testimony  of  a  witness,  will  be 
implied.^ 

§  32.  It  is  the  duty  of  the  counsel  on  each  side  to  see 
that  none  of  their  own  papers,  respectively,  are  given  to 

'  Rawson  1).  Curtis,  19  Til.  410.  7  ilowland    v.    SliorilT,     &c.,     5 

2  Kent  V.  Tyson,  20  N.  II.  131.  Sand.  219. 

3  Taylor  v.  Sorsby,  Walker,  97.  ^  Andrews   v.  Tinsley,  19  Geo. 

4  2  liale's  P.  C.  ;508.  30.3. 

5  Haeklcv  ?'.  nustic,  :]  .Tohn.  252.  ^  Hancock    v.   Salmon,   8   Barb. 

6  Hix  V.  brury,  5  Pick.  290.  504. 


CH.  X.]  JURY.      MISCONDUCT.  221 

the  jury  when  they  retire,  containing  incompetent  evi- 
dence. It  is  ground  for  setting  aside  the  verdict,  if  papers 
are  improperly  given  to  the  jury,  unless  it  should  be  done 
by  assent,  or  unless  there  should  be  something  which 
should  estop  the  opposing  counsel  from  objecting.^  Thus 
where  the  jury  had  the  minutes  of  the  testimony  taken 
by  the  counsel  for  the  successful  party.  Certainly,  unless 
it  affirmatively  appear  that  the  losing  party  could  not 
have  been  prejudiced  by  such  proceeding.^  So  if  papers 
written  on  and  underscored,  for  the  purpose  of  attracting 
any  special  attention,  are  passed  to  the  jury  without  the 
knowledge  of  the  opposing  counsel  or  the  court.^ 

§  33.  But  where  a  paper  containing  an  estimate  of 
counsel  as  to  what  was  due  to  the  plaintiff",  by  permission 
of  the  court,  was  taken  by  the  jury,  the  court  informing 
them  that  the  paper  was  not  evidence;  held,  this  was  not 
error,  though  a  practice  not  to  be  commended.*  So,  after 
a  jury  had  agreed,  they  requested  the  officer  to  hand  them 
some  paper  on  which  to  reduce  it  to  writing;  and,  on 
receiving  it,  this  was  done.  The  officer,  however,  acci- 
dentally gave  them  some  sheets,  with  others,  on  which  a 
portion  of  the  plaintiff^'s  testimony  had  been  taken.  Held, 
the  verdict  could  not  be  set  aside  on  that  account.* 

§  34.  If  one  of  the  jury,  before  retiring,  publicly 
inquires  as  to  a  particular  fact  on  the  records  of  the 
court,  and,  no  objection  being  then  interposed  by  counsel 
on  either  side,  it  is  publicly  answered  by  the  clerk;  this 
is  not  ground  for  a  new  trial.^  So  a  declaration  which 
has  been  withdrawn,  and  a  bill  of  particulars  delivered 
under  it,  ought  not  to  be  taken  out  by  the  jury;  but  the 
judgment  will  not  be  reversed,  if  the  declaration  is  in 
substance  the  same  as  the  one  on  which  the  cause  was 


>  Flanders  v.  Davis,  19  N.H.  139.  <  Alexander  v.  Dunn,  5  Ind.  122. 
^  Durfee  v.  Eveland,  8  Barb.  4G.  ^  Qliddcn  i\  Towle,  11  Fost.  147. 
3  Watson  V.  Walker,  3  Fost.  471.        ^  Alien  v.  Blunt,  3  W.  &  M.  121. 


222  THE    LAW    OF    NEW    TRIALS.  [CII.  X, 

tried:  and  the  bill  is  ])ut  the  substance  of  a  claim,  of 
wbic'b  evidence  was  o-iven  on  tbe  trial. ^  So  it  is  not 
o-round  of  new  trial  in  an  indictment  for  murder,  that 
testimony  taken  at  the  inquest,  beinj^  in  the  record,  was 
accidentally  in  the  jury-room;  it  not  appcarino;  that  the 
jury  read  it,  and  the  court  thinking  that,  if  read,  it  added 
nothins:  to  the  streno;th  of  the  evidence.^  But  where  the 
jury,  in  a  trial  for  murder,  were  permitted  to  take  with 
them  a  transcript  of  the  record  containing  the  evidence 
before  the  magistrate,  though  instructed  that  they  must 
not  read  such  record ;  it  was  held  to  be  error.^ 

§  35.  The  jury,  after  retiring,  sent  a  message  to  the 
judge,  desiring  to  have  Sclwyn's  Nisi  Prius  sent  to  them. 
But,  though  the  counsel  consented,  Lord  Tenterden 
refused  to  do  it.^ 

§  36.  In  the  trial  of  a  case  in  wdiich  the  jury  were  to 
decide  upon  both  law  and  fact,  the  officer  delivered  to 
them,  at  their  request,  without  application  to  the  court, 
after  they  had  retired,  a  volume  of  the  law^s  of  the  State, 
containing  the  act  upon  which  the  indictment  was 
founded,  wliich  act  had  been  commented  on  by  the  coun- 
sel and  by  the  court,  and  which  volume  the  court  would 
have  given  them  liberty  to  take  with  them,  if  requested. 
Held,  not  ground  for  a  new  trial.^  But  in  a  late  case  in 
Rhode  Island  a  verdict  was  set  aside,  because  the  jury 
consulted  the  Revised  Statutes  in  their  room.''(«) 

>  Hall  «.  Ruplov,  10  Rarr,  2B1.  ^  Com.    v.    Jenkins,    Thacber's 

2  State  V.  Tiiulidl,  10  Rich.  213.  Crim.  Cas.  118. 

3  Atkins  v.  Stale   K)  Ark.  ^GH.  »  ytale  v.  Smith,  0  R.  I.  33. 
<  Burrows  v.  Unwiu,  3  C.  &  P. 

310. 

(a)  The  judge,  in  a  criminal  trial,  properly  declined  to  allow  the  jury, 
at  the  request  of  a  respondent,  to  take  with  them  to  their  room  the  Re- 
vised Statutes,  and  his  requested  instructions,  which  had  been  given  no 
further  ihun  they  were  embraced  in  the  general  charge.     State  v.  Kim- 


CII.  X.]  JURY.      MISCONDUCT.  223 

§  37.  If  after  the  jury  liave  retired  they  desire  more 
instructions,  they  must  be  called  Imck;  and  it  is  a  fatal 
error  for  the  judge  to  go  alone  into  the  jury-room  and 
there  give  them.^(a)  So  it  is  ground  of  new  trial,  that, 
after  the  jury  had  been  out  six  hours,  the  foreman  wrote 
to  the  judge  at  the  chambers,  that  they  could  not  agree, 
and  waited  for  his  directions.  The  judge  wrote  an  answer, 
expressing  his  unwillingness  that  they  should  separate, 
and  giving  further  directions ;  and  ordering  that  the 
letter  should  be  brought  into  court,  for  the  purpose  of 
filing  it.^  So  it  is  ground  of  new  trial,  that  the  judge 
gave  the  jury  his  minutes;^  or,  while  the  jury  were  deli- 
berating, re})lied  to  their  inquiry  that  certain  evidence 
had  been  given. ^(6) 

1  Fish   V.   Smith,    13   Tnd.   563  ;        2  Sargent  v.  Roberts,  1  Pick,  337. 
Taylor  v.  Betstbrd,  13  John.  487  ;         ^  Neil  v.  Abel,  24  Wend.  185. 
Yeldell  v.  Sbiuholster,  15  Geo.  189.        *  Bunn  v.  Croul,  10  John.  238. 

ball,  50  Maine,  409.  A  jury,  after  retiring  to  consider  of  their  verdict  in  a 
civil  cause,  were  allowed  by  the  judge,  at  their  own  request,  without  the 
knowledge  of  the  parties,  to  have  a  copy  of  the  General  Statutes.  Held, 
the  verdict  must  be  set  aside.     Merrill  v.  Nary,  10  Allen,  416. 

(a)  A  jury,  having  settled  the  rights  of  the  parties,  but  being  in  doubt 
as  to  the  proper  mode  of  making  a  computation  of  what  was  due,  called 
the  clerk  into  their  room,  and  inquired  of  him,  and  were  correctly  in- 
formed, how  the  computation  should  be  made.  Held,  no  error  or  injury 
having  resulted,  the  irregularity  would  not  set  aside  the  verdict.  Den- 
nison  v.  Pow-ers,  35  Verm.  39. 

{b)  The  refusal  of  a  judge  to  make  an  inquiry  of  the  jury  as  to  their 
finding  of  a  particular  fact,  on  the  morning  after  they  have  rendered  their 
verdict  and  separated,  is  no  ground  for  exception.  Green  v.  Clay,  10 
Allen,  90.  A  verdict  for  the  face  of  a  note  only  which  by  its  terms 
bears  interest  is  erroneous,  and  the  judge  may  before  accepting  the  ver- 
dict recommit  the  case  with  proper  instructions.  Smith  v.  Keels,  15 
Eich  (S.  C.)  L.  318.  Upon  the  request  of  a  jury,  after  deliberation,  for 
further  instructions,  it  is  within  the  discretion  of  the  judge,  to  refuse  to 
give  or  entertain  a  request  for  further  instructions  upon  a  point  on  which 
they  are  not  asked  by  the  jury.  Kellogg  v.  French,  15  Gray,  354;  Harvey 
V.  Graham,  46  N.  H.  165.  Where  the  court  instructed  the  jury,  that,  "  if 
they  believed  the  evidence,  they  must  find  for  the  defendant,"  and  they 
were  afterwards  recalled,  and  reinstructed  in  the  same  way,  accompanied 


224  THE   LAW    OP   NEW    TRIALS.  [CH.  X. 

§  38.  But  oil  the  other  hand  it  has  boon  liold,  tliat  the 
judiie  may  go  into  the  juiy-rooni ;'  or  answer  a  question 
of  tlie  foreman,  who  came  in  after  tlie  jury  had  retired, 
and  in([uired  privately  as  to  tlie  form  of  their  verdict;^ 
or  answer  a  question  of  the  jury.^  ISo,  after  a  jury  have 
retired,  they  may  be  called  in,  and  a  ])a|)er  read  in  evi- 
dence but  accidentally  witliheld  may  then  be  delivered  to 
them.'*  It  is  said  :  "  The  intercourse  between  the  jury  and 
the  bench  is,  in  many  respects,  very  confidential.  Often, 
the  communications  from  the  jury  are  of  that  kind  which 
ought  not  to  be  communicated  to  the  bar.  There  can  be 
but  one  proper  rule  on  the  subject;  tliat  is,  to  trust  all 
these  matters  to  the  discretion  of  the  judge."* 

§  39.  In  a  case  of  murder,  it  was  held  that  a  new^  trial 
should  not  be  granted,  on  account  of  an  article  in  a  news- 
paper, written  by  the  presiding  judge,  respecting  another 
crime  imputed  to  the  prisoner,  and  calling  him  an  "un- 

1  Thayer  v.  Van  Vlect,  5  .John.  ^  Dent  v.  King,  1  Kelly,  200. 
lie  ;  Hancock  v.  Loomia,  8  Barb.  ■•  Flanders  v.  Colby,  8  Fost.  34. 
564.  *  Per  O'Neall,  J.,  Goldsmith  v. 

2  Goldsmith     v.     Solomons,     2  Solomons,  2  Strobh.  2yG. 
Strobh.  290. 

with  an  intimation  that  they  would  incur  the  penalties  of  contempt  unless 
they  gave  in  a  verdict  for  the  defendant ;  held,  the  charge  was  erroneous, 
in  referring  a  question  to  the  jury  and  then  assuming  to  control  its  deci- 
sion. Crutcher  v.  Memphis,  38  Ala.  579.  The  court  may  correct  the  error 
of  giving  an  oral  charge  by  withdrawing  the  oral  instructions,  and  after- 
wards reducing  them  to  writing,  and  then  reading  them,  with  the  direction 
to  disregard  those  flrst  given.  People  v.  Garcia,  25  Cal.  531.  A  defend- 
ant in  a  criminal  case  cannot  object  that  the  charge  was  given  orally, 
and  afterwards  reduced  to  writing,  if  he  consented.  State  v.  Sipult,  17 
Iowa,  575.  If  a  party  desired  to  call  the  attention  of  the  judge  to  the 
fact  that  he  was  mistaken,  as  to  certain  evidence  having  been  given,  as 
stated  in  the  charge,  he  should  have  done  so  directly  and  in  a  way  to 
inform  the  judge  thereof,  and  have  requested  him  to  admonish  tlie  jury 
that  no  such  evidence  had  been  given  ;  and,  if  the  judge  had,  from  mis- 
apprehension, refused  to  correct  the  error,  it  would  be  ground  for  a  new 
trial  on  a  case.     Varuum  i'.  Taylor,  10  13osw.  148. 


CII.  X.]  JURY.      MISCONDUCT.  225 

feeling  savage;"  there  being  no  evidence  that  any  of  the 
jurors  had  read  the  newspaper.^ 

§  40.  Questions  often  arise,  in  reference  to  the  proper 
mode  in  which  a  cause  is  to  he  argued  by  counsel  Upon 
this  subject  it  is  held,  that,  whilst  the  right  of  argument 
on  the  trial  of  a  cause  is  not  to  be  denied  to  counsel,  the 
regulation  of  the  length  of  time  to  be  occupied  in  discus- 
sion, and  the  determination  of  the  legitimate  questions 
for  argument,  must  necessarily  be  left  to  the  sound  legal 
discretion  of  the  presiding  judge  ;2  certainly,  unless  the 
interference  of  the  court  is  shown  to  be  without  cause, 
and  prejudicial  to  the  party  complaining.^  Thus  it  is  a 
matter  of  discretion  in  the  court,  to  permit  the  counsel  for 
the  defendant,  in  his  closing  argument,  to  refer  to  and 
comment  upon  other  matters  than  were  referred  to  by  the 
plaintifl''s  counsel,  and  to  which  no  opportunity  was  given 
for  a  reply.'*  But  counsel  on  either  side  should  not  be 
allowed  to  lose  sight  of  the  evidence  and  of  the  issues,  and 
indulge  in  denunciations  of  a  party,  based  on  the  assump- 
tion of  facts  not  attempted  to  be  proved,  and  which  should 
not  be  permitted  to  disturb  that  calm  deliberation  which  it 
is  the  duty  of  jurors  to  bestow.^  The  court  should  arrest 
an  argument  not  based  on  the  evidence.^  And  if  counsel, 
mistake  evidence  in  his  argument,  the  court  may,  in  their' 
discretion,  set  aside  the  verdict,  and  grant  a  new  triaL 
Though  their  refusal  to  do  so  is  not  error  ;^  nor  is  it  error 
in  the  court  to  refuse  to  prevent  counsel  from  stating  that 
to  the  jury  as  proved,  about  which  there  is  a  conflict  of 
testimony.^  (See  §  45.)  So  it  is  good  ground  for  a  new 
trial,  if,  in  the  absence  of  the  defendant  and  his  counsel, 


'  Vance  v.  Com.,  3  Va.  Cas.  1G2.        ^  Fry  v.  Bennett,  3  Bosw.  200. 

2  Dobbins'y.Oswalt,  20Ark.  619.        f  Dickerson  v.  Burke,  25  Geo. 
See   Wightraan   v.  Providence,    1  225. 

Olifl'.  524.  '■  Thompson  v.  Barkley,  27  Peun. 

3  Brooks  V.  Perry,  23  Ark.  32.  263. 

4  Hull   V.  Alexander,  20   Iowa,        »  Hotelier  v.  State,  18  Geo.  460  ; 
569.  McNabb  v.  Lockhart,  ib.  495. 

15 


226  THE    LAW    OF    NEW    TRIALS.  [ciI.  X. 

the  court  permit  the  plaintiff's  counsel  to  misstate  the 
law  to  the  jury.'(a) 

§  41.  In  'New  York,  each  party  must  merely  open  his 
own  case.  The  defendant  cannot,  as  in  England,  com- 
ment upon  the  plaintiff's  evidence,  except  so  far  as  is 
necessary  for  a  proper  understanding  of  his  own.^ 

§  42.  In  an  action  for  damages  resulting  from  a  defect- 
ive higlnvay,  in  the  course  of  his  argument,  the  defend- 
ant's counsel,  without  objection  or  interruption,  referred 
to  the  large  sums  often  claimed  and  recovered  of  railroads 
and  towns  in  similar  cases,  and  the  often  fictitious  and 
exaggerated  character  of  the  alleged  injuries.  In  reply, 
the  counsel  for  the  plaintiff  referred  to  a  case  by  name, 
which  had  been  tried  before  referees,  and  stated  the 
amount  awarded.  The  counsel  for  the  defendant  ob- 
jected, and  the  court  suggested  that  the  remarks  should 
be  confined  to  the  law  and  evidence  of  the  case,  but  after- 
wards permitted  the  counsel  to  proceed.  Held,  the  ver- 
dict should  be  set  aside.^ 

§  43.  In  an  action  for  injury  alleged  to  be  caused  by  a 
defective  highway,  the  only  testimony  for  the  plaintiff 
was  that  given  by  himself.  The  defendants  then  offered 
evidence,  that  the  accident  occurred  at  a  place  and  under 
circumstances  materially  different  from  those  definitively 
testified  to  by  the  plaintiff.  The  counsel  for  the  plaintiff 
was  proceeding  to  argue  to  the  jury,  that  the  defendants 
.were  liable,  even  if  the  case  was  rightly  presented  by 

'  Onnsby  r\  Johnson,  1  B.  Mon.  2  ^yranlt     v.    Chamberlain,    33 

-80.     See  Cook  v.  liitter,   4  E.  D.  Barb.  229. 

Smith,  253  ;  Rex  v.  Courvoisier,  9  »  Tucker  v.  Heniker,  41  N.  H. 

C.  &  P.  362.  317. 

(a)  Counsel  who  have  requested  the  court,  in  a  criminal  case,  to  state 
the  law,  have  no  right  to  argue  to  the  jury  that  the  instructions  were 
erroneous.     Edwards  v.  State,  22  Ark.  253. 


CH.  X.]  JURY.      MISCONDUCT.  227 

their  own  tcstimon}^  but  was  interrupted  by  the  judge 
with  the  remark  that  he  could  not  take  that  position, 
because  he  thus  discredited  his  only  witness.  Held,  no 
ground  for  new  trial. ^ 

§  44.  Where  both  parties  have  waived  their  right  to 
argue  by  declining  so  to  do,  allowing  one  party  to  re-read 
a  record  to  the  jury,  on  their  coming  in  for  instructions, 
does  not  revive  the  right  of  the  other  to  argue  the  case.^ 

§  45.  But  the  court  above  will  not  control  the  presiding 
judge  in  the  court  below,  who  heard  the  evidence  and 
tried  the  cause,  in  deciding  how  far  the  remarks  of  counsel 
are  warranted  by  the  evidence  before  the  jury,  when  it  is 
not  clear  that  they  were  unwarranted.^    (See  §  40.) 

§  46.  "Where  the  court  direct  counsel  to  go  on  and  state 
his  points  to  the  jury,  and  he  thereupon  states  his  points 
but  does  not  argue  them ;  if  the  direction  forbade  him  to 
argue  the  points,  it  is  error;  otherwise,  if  he  did  not  argue 
them  because  he  chose  not  to  do  so.'' 

§  47.  Counsel  may  illustrate  their  arguments  to  the 
jury  by  referring  to  calculations.^ 

§  48.  So  counsel  may  discuss  to  the  court  what  the 
form  of  the  verdict  shall  be,  in  the  presence  of  the  jury, 
they  having  come  in  for  instructions  thereupon.^  So, 
on  a  trial  of  title  to  personal  property,  the  counsel  for 
the  plaintiff  may  argue  to  the  jury,  that  it  is  a  signi- 
ficant fact  ao-ainst  the  defendant,  that  he  had  failed 
to  put  his  vendor  on  the  stand.^  So  declarations  by 
counsel,  on  a  trial  for  slander,  that  the  suit  was  brought 
merely  to  vindicate  character,  and  that  the  damages 
would  be  released,  constitute  no  ground  for  a  new  trial.* 

1  Clark  V.  Lowell,  1  Allen,  180.  s  Royston  v.  Royston,  29  Geo.  82. 

«  Gotten  V.  Rutledge,  33  Ala.  110.  «  Ruffing  v.  Tilton,  12  lud.  259. 

3  Cobb  V.  State,  27  Geo.  648.  '  Gray  v.  Burk,  19  Tex.  228. 

*  Cartright  v.Clopton,  25  Geo.  85.  «  Larki  ns  v.  Tarter,  3  Sneed,  681 


228  THE    LAW    OF   NEW    TRIALS.  [CH.  X. 

Kor  that  counsel  were  permitted  to  comment  on  the 
cross-interroo-atorics  of  the  adverse  party  to  a  deponent, 
for  the  purpose  of  discrediting  the  testimony.  Such 
interrogatories  are  in  the  nature  of  declarations  or  ad- 
missions. A  question  may  be  so  framed  as  to  involve 
a  strong  implication  of  the  existence  of  certain  facts,  or  a 
neo-ative  pregnant  indicating  a  denial  of  them.  A  party 
often  says  or  does  something  in  the  presence  of  the  jury 
which  may  properly  influence  them.  If  a  witness  should 
be  examined  on  the  stand,  the  mode  in  which  questions 
were  framed  and  put  would  certainly  be  open  to  observa- 
tion.^ So  it  is  improper  to  allow  the  plaintift''s  counsel, 
while  summing  up  to  the  jury,  to  indulge  in  denunciation 
of  the  defendant  on  an  assumption  of  facts  not  proved. 
But  although  the  defendant  objects,  on  that  ground,  to 
the  making  of  such  remarks,  and  the  court  responds,  "  I 
will  say  to  the  jury  whatever  is  proper  to  be  said  at  the 
end  of  the  matter,"  and  thereupon  the  defendant  excepts ; 
a  new  trial  will  not  be  granted,  especially  when  it  is  not 
shown  by  the  bill  of  exceptions  that  the  plaintiff's 
counsel,  subsequent  to  such  exception,  made  any  unjusti- 
fiable statements  to  the  jury.^ 

§  40.  In  a  suit  for  flowage,  the  plaintiff's  counsel  was 
permitted  by  the  court  to  read  to  the  jury,  in  his  closing 
aro-umcnt,  extracts  from  Evcms's  Millwright  Guide;  the 
court  instructing  the  jury  that  such  extracts,  from  scien- 
tific works,  were  not  authority,  even  2)rimd  facie,  but,  like 
the  argument  of  counsel,  or  any  other  thing  adduced  to 
illustrate,  may  or  may  not  be  satisfactory  to  the  jury. 
Held,  there  was  no  error.^ 

§  50.  Upon  this  subject  it  is  remarked,  "While  the 
right  of  a  party  to  be  heard  by  his  counsel  is  not  to  be 
questioned,  inasmuch  as  this  privilege  may  be  liable  to 

1  Smiley  v.  Burpee,  5  Allen,  5G8        ^  Fry  v.  Bennett,  3  Bosw.  200. 
—per  Bigelow,  C.  J.  ^  Cory  v.  Silcox,  G  lad.  39. 


CH.  X.]  JURY.      MISCONDUCT.  229 

abuse,  the  extent  and  manner  of  its  exercise  must,  in  some 
measure,  rest  in  the  sound  discretion  of  the  court.  Al- 
though unlimited  license  is  not  allowed,  yet  no  pertinent 
and  legitimate  process  of  argumentation,  within  the  ap- 
propriate time  allowed,  should  be  restricted  or  prohibited. 
— A  pertinent  quotation,  or  extract  from  a  work  on  sci- 
ence or  art,  as  well  as  from  a  classical,  historical,  or  other 
publication,  may,  by  way  of  argument  or  illustration,  be 
not  only  admissible,  but  sometimes  highly  proper.  And 
it  would  seem  to  make  no  difference  whether  it  was  re- 
peated by  counsel  from  recollection,  or  read  from  a  book. 
It  would  be  an  abuse  of  this  privilege,  however,  to  make 
it  the  pretence  of  getting  improper  matter  before  the 
jury."'(a) 

§  51.  It  seems  to  have  formerly  been  the  rule,  more 
especially  in  criminal  cases,  that  a  jury  are  not  to  separate 
before  rendering  their  verdict;  that  their  separation  is 
ground  of  new  trial,  unless  clearly  explained  and  justified ; 
and  that  such  explanation  is  not  allowed  from  the  juror 

'  Per   Bartley,   J.   C.    (iu  sub-    stance),   Legg   v.   Drake,   1    Mc- 

Cooke,  286. 

{a)  A  protest  had  been  filed  with  a  consul  of  the  United  States  by  the 
master  of  a  vessel  injured  at  sea.  In  a  suit  upon  a  policy  on  the  vessel, 
the  plaintiff  offered  the  protest  in  evidence,  but  it  was  excluded,  on  ob- 
jection. In  his  closing  argument,  the  plaintiff's  counsel  attempted  to 
comment  on  the  protest,  and,  against  objection,  was  allowed  to  proceed, 
on  the  ground  that  such  protests  usually  set  forth  the  particulars  of  such 
a  casualty,  and  that  under  the  circumstances  the  plaintiff  was  entitled 
to  any  fair  inference  from  the  general  character  of  the  paper,  and  the 
refusal  of  the  defendants  to  have  it  read.  Held,  error.  Hoxie  v.  Home, 
33  Conn.  471.  Where  the  execution  of  a  will  is  in  issue,  a  refusal  to 
permit  counsel,  in  the  course  of  the  argument,  to  show  the  will  to  the 
jury,  is  not  ground  for  reversal,  especially  where  there  is  no  indication 
that  the  will  was  excluded  from  the  jury  in  their  retirement.  Browufield 
V.  Brownfield,  43  111.  147.  It  is  error  to  permit  counsel  to  read  and  com- 
ment on  minutes  of  the  evidence  taken  at  a  former  trial,  although  the 
jury  are  instructed  not  to  consider  anything  thus  read.  Martin  v. 
Orndorff,  22  Iowa,  504. 


230  THE    LAW    OF   NEW    TRIALS.  [CH.  X. 

himself.'(6)  As  where  a  part  of  a  jury,  in  a  capital  case, 
the  trial  of  Avhich  lasted  several  days,  frequently  sepa- 
rated themselves  at  night  from  their  fellow-jurors  for 
iifteen  or  twenty  minutes  at  a  time,  without  heing  under 
the  charge  of  an  officer.-  And  in  such  case  it  is  unneces- 
sary for  the  prisoner  to  show  tliat  they  were  tampered 
with.  It  is  sufficient,  if  they  might  have  been.^  So,  in 
a  criminal  case,  where  the  court  ordered  that  the  jury 
should  be  kept  in  a  room  by  themselves,  and  one  juror, 
on  their  way  to  the  room,  separated  from  the  rest  for 
about  twenty  minutes,  to  attend  to  some  necessary  busi- 
ness, and  another,  in  company  with  an  officer,  for  five 
minutes,  to  see  a  sick  child.-*  Or  where  the  sheriff  walks 
with  them  to  a  neighboring  house,  and  whilst  there  with- 
draws from  the  room  where  they  are,  leaving  them  in  the 
company  of  three  other  persons,  although  these  persons 
swear  that  there  was  no  allusion  by  them  to  the  trial 
during  such  absence  of  the  sheriff.^  So  where  the  jury 
found  the  prisoner  guilty,  but  fixed  no  terms  of  imprison- 
ment ;  and,  being  discharged,  were  instantly  called  back, 
before  any  of  them  had  left  the  court-house,  but  one,  who 
had  gone  a  short  distance  accompanied  by  the  deputy- 
sherift'.^  So,  in  a  capital  case,  notwithstanding  the  con- 
sent of  the  defendant  and  State's  attorney  and  the  court. 
"  If  the  law  requires  the  jury,  in  a  capital  case,  to  be  kept 
together,  the  court  cannot  dispense  with  the  requisition, 

•  3  Day,  287,  310-1  and  notes;  ^  The  State  v.  Fox,  Geo.  Decis. 

Overbee's  Case,  1  Robinson,  750  ;  Part  I.  35  ;   The  State  v.  Porter, 

State  v.  Garrigues,  1  Hayw.  241  ;  ib.  46. 

Organ  v.  The  State,  20  Miss.  78.  "  Com.  v.  McCaul,  Virg.  Cas.  271. 

2  McLain  v.  The  State,  10  Yerg.  ^  Wormley's  Case,  8  Gratt.  712. 

241.  ^  Mills's  Case,  7  Leigh,  751. 


[h)  "In  some  of  the  States  a  distinction  lias  been  taken  between  a 
separation  before  the  jury  are  sworn  and  charged  with  the  case,  and  one 
which  may  occur  after  evidence  has  been  submitted  to  them.  But  in 
this  State  (Tennessee)  no  such  distinction  has  been  made,  and  we  think 
none  exists  in  reason.  The  mischief  which  may  result  from  a  separation, 
is  the  same  in  one  case  as  in  the  otlier."  Wesley  v.  'J'he  State,  11  Humph. 
502. 


CH.  X.]  JURY.      MISCONDUCT.  231 

nor  ought  the  consent  of  the  prisoner  to  be  taken. "^  So 
where,  in  a  criminal  case,  one  of  the  jurors  separated  from 
his  fellows  for  a  short  time,  after  the  jurors  were  selected, 
but  before  they  were  sworn ;  unless  it  were  proved  that 
he  had  no  communication  with  other  persons,  of  which 
his  own  affidavit  is  not  sufficient  evidence.^  So  where  the 
defendant  shows,  that,  after  the  cause  was  submitted  to 
the  jury,  part  of  the  jury  separated  without  consent  of  the 
parties  or  order  of  the  court,  and  were  exposed  to  undue 
influences;  unless  the  State  shows  affirmatively  that  no 
improper  influences  were  exerted  upon  them;^  or,  in  a 
capital  case,  that  the  prisoner  could  not  by  any  possibility 
have  been  prejudiced  by  the  separation.*  The  presump- 
tion is  against  the  verdict,  and  the  government  must 
show,  beyond  a  reasonable  doubt,  that  the  prisoner  has 
suflTered  no  injury.^ 

§  51a.  And  the  rule  is  more  especially  applicable, 
where  it  is  affirmatively  shown,  that  the  breach  of  secrecy 
involved  in  separation  itself  was  attended  by  other  vio- 
lations of  a  juror's  duty;  as  where  one  of  the  jury  sepa- 
rated from  his  fellows,  without  permission  of  the  court, 
under  the  charge  of  a  constable,  after  they  had  retired, 
and  received  a  paper  or  document  from  the  prevailing 
party,  which  the  jury  wanted,  and  which  went  into  their 
possession.^  Or  where  the  jury  separated  before  verdict, 
and  had  free  intercourse  with  other  people.^ 

§  bib.  There  are,  however,  many  decisions  upon  this 
subject,  of  a  very  different  character.  It  is  quite  impos- 
sible to  reconcile  the  numerous  cases,  and  very  difficult  to 


•  Wesley  «. The  State,  11  Humph.  ^  Jumpertz  v.  People,  21  111.  375; 

503.   Ace.  The  King  «.  Wolf,  1  Chit.  Wiley  v.  The  State,  1  Swan,  256. 

401.  5  Coker  v.   State,    20   Ark.   53  ; 

2  nines  v.  State,  8  Humph.  597.  State  v.  Prescott,  7  N.  H.  287. 

3  Cornelius  v.  The  State,  7  Eng.  e  offt  v.  Vick,  Walker,  99. 

783.  7  The  State  v.  Sherbourne,  Dud- 
ley, Geo.  28. 


232  THE    LAW    OF    NEW    TRIALS.  [CH.  X. 

derive  from  them  what  may  be  regarded  as  a  fixed  and 
definite  rule  of  law.  In  this  countr}',  the  matter  is  regu- 
lated to  some  extent,  in  the  several  States,  by  express 
statute  or  local  usage.  In  criminal  and  more  particularly 
capital  cases,  separation  of  the  jury  is  for  the  most  part 
more  carefully  guarded  against,  than  in  civil  actions.  In 
capital  cases,  the  jury  are  placed  in  charge  of  an  officer 
during  the  progress  as  well  as  at  the  close  of  the  trial, 
and  according  to  the  terms  of  his  oath  kept  by  him  apart 
from  all  other  persons.  But  in  most,  if  not  all  other 
cases,  it  is  only  when  the  jury  retire  to  deliberate  that 
they  are  placed  in  charge  of  an  officer,  who  is  sworn  to 
keep  them  together  till  they  are  agreed  or  discharged  by 
the  court.  Some  of  the  earlier  and  stricter  cases  apply 
the  same  term  and  principle,  of  separation^  to  the  common 
occurrence  of  a  single  juror's  temporarily  leaving  the 
panel  while  the  trial  is  going  on.  The  universal  practice 
is,  to  ask  permission  of  the  court,  but,  without  such  per- 
mission, there  seems  little  reason  to  contend,  in  tlie  present 
state  of  the  law,  that  the  act,  although  it  might  be  a 
ground  for  serious  reprimand,  would  of  itself  furnish 
sufficient  reason  for  a  new  trial. 

§  52.  In  an  early  American  case  it  is  said,  "  The  old  rule 
was,  that  the  jury  on  no  occasion  should  separate.  But 
it  has  been  relaxed,  in  cases  of  imperious,  or  perhaps  of 
unavoidable  necessity."'(a)  And  it  is  held  that  such  sepa- 
ration, without  permission  of  the  court,  before  rendering 
their  verdict,  in  trials  of  minor  offi3nces,(^)  and  in  civil 

■  Com.  V.  McCaul,  Virg.  Cas.  271;  Brown  v.  McConnel,  1  Bibb,  265  ; 
Douglass  V.  Tousej',  2  Wend.  352  ;     Winslow  v.  Draper,  8  Pick.  170. 

(a)  A  leading  case  upon  this  subject  is  the  King  v.  Woolf,  I  Chit.  R. 
401.  In  an  elaborate  opinion,  Abbott,  C.  J.,  said,  that,  if  illegal,  con- 
sent of  counsel  or  permission  of  the  court  would  not  make  it  lawful, 
though  the  latter  might  protect  the  jury  from  censure. 

(6)  As  to  the  effect  of  separation,  even  in  a  capital  case,  see  McCar- 
ter's  case,  11  Leigh,  633;  Tooel's  case,  ib.  714. 


CH.  X.]  JURY.      MISCONDUCT.  233 

causes,  thongli  a  misdemeanor,  for  wliicli  the  juries  may 
be  punished,  will  not  of  itself  vitiate  the  verdict;  and 
that  application  for  a  new  trial,  on  such  grounds,  is  in- 
variably denied,  where  no  injury  is  done.^  Or  where 
there  is  no  ground  to  suspect,  more  especially  after  strict 
inquiry  by  the  court,  that  they  have  been  tampered 
with.^(rt)  Thus  it  is  no  ground  of  new  trial,  that  the  jury 
separated  over  night,  after  agreement.^  Or,  in  a  civil  case, 
dispersed  over  night,  without  permission.*  Or,  even  in  a 
criminal  case,  for  stabbing,  seal  up  and  deliver  their  ver- 
dict to  the  marshal  to  be  kept,  and  then  disperse,  and 
afterwards  meet  in  court  and  render  their  verdict,*  Or 
dispersed,  after  agreement,  while  the  court  were  at  dinner.^ 
Or  separate,  before  agreement,  even  in  a  capital  case,  by 
consent.'^  And  where  a  jury  have  returned  a  sealed  ver- 
dict and  separated,  they  may,  on  the  opening  of  the  ver- 
dict, be  sent  out  again,  to  make  a  computation  which  the 
verdict  finds  should  be  made.^  So  it  was  held  no  ground 
of  new  trial,  that  the  jury  separated  immediately  upon 
receiving  the  case,  and  assembled  in  a  jury-room  the  next 
morning;  notwithstanding  the  provisions  of  a  statute, 
that  "when  the  court  have  committed  any  cause  to  the 
consideration  of  the  jury,  the  jury  shall  be  confined  under 
the  custody  of  an  officer — until  they  are  agreed."^  Such 
statute  is  held  to  be  purely  directory}^     Or,  in  a  civil  case, 

'  Cannon  v.  The  State,  3  Tex.  31;  Edelin  v.  Thompson,  2  Har.  &  G. 

Welch  V.  Welch,  9  Rich.  33.  31  ;  8  Pick.  170. 

2  State  V.  Madoil,  13  Flori.  151  ;  »  Burns  v.  Paine,  8  Tex.  159. 

Parsons   v.  Huff,    38  Maine,  137  ;  s  state  v.  Weber,  33  ]Mis.  331. 

State  V.  Hester,  2  Jones,  83;  Ed-  e  Horton  v.  Horton,  3  Cow.  589. 

rinffton  v.  Riger,  4  Tex.  89 ;  State  '  Stephens  v.  People,  19  N.  Y. 

V.  Barton,  19  Mis.  337  ;  30  Verm.  (5  Smith)  549 ;  The  State  v.  Engle, 

567 ;  19  N.  Y.  549  ;  State  v.  Har-  13  Ohio,  490. 

low,  31  Mis.  446  ;  State  v.  Igo,  ib.  »  Sutlifl'  «.  Gilbert,  8  Ham.  405. 

459.  ^  Brandin  v.  Grannis,  1    Conn. 

^  Douglass  V.  Tousey,  2  Wend.  401. 

353  ;  Bunn  v.  Hoyt,  3  Johns.  353  ;  'o  Downer  v.   Baxter,  30  Verm. 

474. 

(a)  Upon  which  point,  the  decision  of  the  cou>  t  below  is  held  conclu- 
sive.    Bonner  v.  Baxter,  30  Verm.  467. 


234  THE    LAW    OF    NEW    TRIALS.  [ClI.  X. 

that  the  jury  were,  in  the  presence  of  counsel,  allowed  to 
separate,  alter  having  been  charged,  there  being  no  evi- 
dence of  improper  conduct,  or  of  any  attempt  to  influence 
their  verdict.^  So  a  case  was  committed  to  the  jury  at  ' 
about  1  P.  M.,  on  Saturday,  with  authority  to  se})arate 
when  they  should  agree.  At  4,  they  agreed  and  separated, 
and  on  Monday  morning  returned  a  verdict  defective  in 
form,  were  sent  out  again,  and  brought  in  a  verdict  con- 
formable to  the  issue.  Held,  a  new  trial  should  not  be 
granted.^  So  a  new  trial  was  refused,  for  the  separation 
of  the  jury  for  supper  immediately  after  the  charge,  at 
their  request,  by  leave  of  the  court,  under  a  direction  to 
neither  talk  nor  listen  to  any  discussion  about  the  suit, 
counsel  being  present  and  not  ol)jecting;  unless  it  appear 
that  during  the  separation  something  happened  to  throw 
suspicion  on  the  verdict.'  So  after  the  jury  had  retired 
and  deliberated  several  hours,  they  were  allowed  to  sepa- 
rate and  dine,  without  the  knowledge  or  consent  of  the 
plaintiflts  or  their  attorneys.  The  attorneys,  before  the 
reassembling  of  the  jury,  knew  of  the  dispersion,  but 
made  no  objection  to  their  reassembling,  and  making  up 
and  returning  their  verdict.  Held,  the  plaintiffs  could 
not  object  to  it,  no  misconduct  of  the  jurors  being  shown 
or  alleged.*  So,  where  the  jury,  after  tliey  had  agreed, 
dispersed  without  permission  of  the  judge,  it  was  held 
that  the  judge  might  in  his  discretion  receive  and  record 
the  verdict.^  So  where,  while  the  court  was  in  session,  a 
juror  left  the  box,  passed  through  the  group  of  spectators, 
standing  about,  and  after  a  moment's  stay  returned  to  the 
box  again;  held  no  ground  for  a  new  triaL^  So  where 
the  jury  retired  to  the  street,  and  there  came  such  a  tem- 
pest, that  some  of  them  departed  without  leave,  and  one 
juror  talked  with  a  third   person   about  the   case,  and 

•  Riffgins  V.  Brown,  13  Geo.  271.         *  Stix  v.  Pump,  37  Geo.  333. 

2  Winslow  V.  Draper,   8    Pick.        ^  Sartor  v.  McJunkin,    8   Rich. 

170.  4r)l. 

Adkins  v.  Williams,  23   Geo.        e  Porter  v.  The  State,  2  Carter, 

222.  435. 


CH.  X.]  JURY.      MISCONDUCT.  235 

accepted  an  invitation  to  drink;  a  majority  of  tlic  judges 
sustained  the  verdict.'  Or  where,  in  a  criminal  case,  the 
jurors  retire  from  court  without  permission,  and  witliout 
an  officer,  but  immediately  return,  not  speaking  to  any 
one.-  So  it  is  not  ground  of  new  trial,  that,  after  the  jury 
had  retired,  some  of  them  made  their  appearance  in  the 
court-room,  and,  being  asked  by  the  judge  what  they  did 
there,  answered  that  they  could  not  agree,  and  were  sent 
back.^  Nor  that  jurors  eluded  the  constable,  left  the 
jury-room,  and  one  remained  through  the  night  at  a 
tavern,  the  other  at  his  own  house ;  but  they  both  returned.* 
I^or  that  a  juror  left  the  box  without  permission,  and 
went  out  of  doors ;  but  spoke  to  no  one  except  the  con- 
stable, who  brought  him  back,  and  no  testimony  was 
given  in  his  absence.^  So  under  the  provision  of  a  statute, 
that  the  jury  shall  not  be  sent  out  after  they  have  come 
in  for  a  second  time,  and  are  unable  to  agree,  without 
their  consent;  it  is  not  erroneous  for  the  judge  to  ask 
them  whether  their  difficulty  is  upon  the  question  of  law 
or  fact,  and  to  send  them  out  again,  the  jury  not  object- 
ing.^ IS'or  that  the  jury,  after  they  were  impanelled,  went 
in  a  body,  under  the  care  of  the  sheriff,  a  mile  and  a  half 
into  the  country,  for  recreation;  were  kept  together,  no 
one  being  permitted  to  speak  to  them,  nor  they  permitted 
to  speak  to  any  one;  and  on  returning  immediately  retired 
to  their  room.^  !N"or  that,  in  walking  out  for  exercise,  the 
jury  with  the  sheriff  pass  beyond  the  limits  of  the  county.^ 
Nor  that  a  jury  retired  to  a  room  of  the  building  wherein 
the  court  was  held,  to  consider  of  the  verdict,  without 
being  accompanied  by  an  officer,  but  it  did  not  appear 
that  they  improperly  separated,  or  that  there  had  been 
any  communication  with  them.^     JSTor  that  a  jury  agreed 

•  Bro.  Abr.  Verdict,  pi.  19.  s  nill,  3  Cow.  355. 

2  State  V.  Carstaphen,  3  Hay.  238.  «  Douglass  v.  State,  4  Wis.  387. 

3  Lord     St.     John     v.    Abbott,  ''  The  State  v.  Perry,  Busb.  330. 
Barnes,  441.  s  Thompson's  case,  8  Gratt.  637. 

*  Smith  V.    Thompson,    1   Cow.  ^  Jaruagiu  ».  The  State,  10  Yerg. 
221.  529. 


236  THE    LAAV    OF   NEW    TRIALS.  [CII.  X. 

Upon  a  verdict  and  it  was  signed  by  tlie  foreman,  but, 
the  justices  not  being  on  the  bench  at  the  time,  two  of 
the  jurors  separated  from  their  fellows,  and  conversed 
with  others,  though  not  on  the  subject  of  the  cause.  The 
justices  then  resumed  their  seat,  and  the  verdict  was  ren- 
dered.^ So,  in  trespass  for  taking  goods,  the  defendant 
having  attached  them  as  the  property  of  a  third  person, 
the  jury  found  for  the  plaintift"  "the  full  value  of  the 
goods  attached,  and  interest  from  the  time  they  were  so 
attached  to  the  present  time,"  and  then  separated,  and 
afterwards  in  open  court  ascertained  the  amount,  and  in- 
serted it  in  their  verdict.  A  new  trial  was  not  granted.^ 
So  it  is  held  no  ground  of  new  trial,  in  a  capital  case,  that 
the  jury  separated  and  mingled  with  the  rest  of  the  com- 
munity, and  the  sheritF,  who  was  not  a  sworn  officer  of 
the  jury,  had  charge  of  them  for  a  time;  it  being  satis- 
factorily shown  that  the  jury  were  not  tampered  with.^ 
Nor  that  one  of  the  jurors  absented  himself  for  a  short 
time  from  the  others  without  consent  of  the  court,  where 
the  record  itself  precludes  the  supposition  that  such  juror 
has  been  or  could  be  tampered  with.^  So  it  is  not  a 
ground  for  a  new  trial,  that  the  jury  even  in  a  capital 
case  took  their  meals  at  a  public  table,  at  a  hotel  where 
other  guests  were  seated,  but  were  kept  together  without 
any  separation,  and  were  always  under  the  charge  of  a 
sworn  officer,  and  generally,  if  not  always,  under  strict 
vigilance ;  although  this  is  an  irregularity,  contrary  to 
the  proper  forms  of  proceeding.' 

§  53.  With  more  special  reference  to  individuals ;  sepa- 
ration of  one  juror  by  mistake  is  not  ground  of  new  trial.^ 
Or,  even  in  a  criminal  case,  for  a  short  time,  where  the 

'  I?a;i;lan(l  v.  Wills,  G  Leigh,  1.  Miss.  47.    See  Jumpertz  v.  People, 

2  Blake  v.  Blossom,  8  Shep.  394.  21  111.  375. 

3  Stone  V.  The  State,  4  Humph.  «  Burrill  v.  Phillips,  1  Galli.  360. 
27.  (In  this   case,    Jud!>;e   Story   lays 

*  Whitney  v.  The  State,  8  Mis.  stress  upon  the  justice  of  the  ver- 
165.  diet.) 

s  Browning    v.   Mississippi,    33 


CII.  X.]  JURY.      MISCONDUCT.  237 

State  shows,  by  the  affidavit  of  the  juror,  that  he  with- 
drew in  consequence  of  indisposition,  and  that,  while 
absent,  he  conversed  with  no  one  about  the  case,  and  was 
subject  to  no  improper  intluencos.^  Or  for  necessary  pur- 
poses, without  any  imputation  of  improper  motives.^  ISTor 
that  one  of  the  jurors  went  about  fifteen  steps  apart  from 
his  fellows,  but  was  under  the  eye  of  an  officer.^  Nor 
that,  after  the  jury  in  a  civil  case  had  retired,  one  of  the 
jurors  left  the  room  unattended  by  the  bailiii',  and  was 
absent  iSfteen  minutes."  ]N'or  that  one  juror  went  home, 
and  while  he  was  absent  the  rest  separated  by  consent  of 
the  parties,  and  afterwards  the  whole  of  them  delivered 
their  verdict.^ 

§  54.  A  final  adjournment  of  the  court  for  the  term 
operates  as  a  legal  discharge  of  a  jury,  and  terminates 
their  functions  as  such.  But  an  illegal  discharge,  by  the 
court,  of  a  jury  in  a  civil  case  does  not  work  a  discon- 
tinuance of  such  case,  nor  prevent  the  impanelling  of  an- 
other jury  to  try  it.^ 

§  55.  If  a  juror  sworn  in  a  capital  case  is  permitted  to 
be  separated  from  his  fellows,  a  special  order  authorizing 
the  separation  should  be  entered  of  record,  and  the  juror 
placed  in  the  charge  of  an  officer,  who  should  be  specially 
sworn  not  to  permit  the  juror  to  go  out  of  his  sight  and 
hearing ;  he  should  also  be  sworn  not  to  converse  with 
him  about  the  trial  himself,  or  permit  others  to  do  so,  and 
to  cause  the  juror  to  return  as  soon  as  practicable.^ 

§  56.  IsTotwith standing  a  practice,  of  authorizing  the 
clerk,  by  consent,  to  receive  a  verdict  and  discharge  the 


'  Stauton  V.  The  State,  8  Eng.  *  Alexander  ??.  Dunn,  5  Ind.  122. 

317.  ^  Parsons  v.  Huflf,  38  Maine,  137. 

2  State  V.  Lytic,  5  Ired.  58.  «  Ashbaugli    v.    Edgecomb,    13 

3  Rowe  V.  The  State,  11  Humph.  Ind.  466. 

491.  ^  Jumpertzv.  People,  21  111.  375. 


238  THE    LAW    OF    NEW    TRIALS.  [CH.  X. 

jury  during  the  recess  of  the  court ;  a  verdict  thus  taken 
will  be  set  aside.' 

§  57.  In  a  criniinal  case,  it  is  held  tliat  the  party  is  en- 
titled to  have  the  jury  present  and  ])olled  when  the  verdict 
is  read,  although  he  agreed  that  they  might  separate  and 
seal  up  the  verdict.'^  But,  in  a  civil  action,  an  agreement 
that  the  jury  may  seal  up  their  verdict  and  separate, 
waives  all  right  to  poll  the  jury,  except  for  the  purpose  of 
finding  out  whether  they  agreed  to  the  verdict  when  it 
was  sealed  up.'' 

§  58.  It  was  agreed  that  tlie  jury  might  seal  up  their 
verdict  and  separate,  and  it  appeared  of  record  that  they 
returned  a  sealed  verdict.  In  order  to  set  aside  the  ver- 
dict, an  afiidavit  was  put  in,  that  two  of  them  separated 
from  their  fellows  after  retiring,  were  in  the  office  of  the 
affiant,  and  conversed  in  his  presence  about  the  case.  The 
court  refused  a  new  trial,  as  it  might  well  be  that  after 
the  verdict  the  jurors  separated,  and  under  those  circum- 
stances the  conversation  had  would  not  be  improper.* 

§  59.  The  court  above  ordered  a  new  trial,  where  the 
judge  said  to  the  jury  that  he  must  keep  them  together 
till  they  could  agree,  and  that  it  would  be  better  for  them 
to  find  a  wrong  verdict  than  not  to  agree,  as  any  error 
could  be  corrected  by  the  Supreme  Court.'' 

§  GO.  In  a  criminal  case,  the  judge  instructed  the  officer 
to  discharge  the  jury  at  a  certain  hour  of  the  night  if 
they  had  not  then  agreed.  Held,  this  order  was  binding, 
and  a  verdict  agreed  upon  after  that  hour  should  be  set 
aside.^ 


'  Baltimore,   &c.    v.    Polly,    14        ^  Sanders  v.  State,  2  Clarke,  230. 
Gratt.  447.  s  Taylor  v.  Jones,  2  Head,  565. 

2  Wright  13.  State,  11  Ind.  569.  ^  Com.    v.    Townsend    (Mass.), 

3  Hancock  v.  Winans,  20  Tex.  Law   Reg.,   Oct.    1863,  p.  768;   5 
320.  Allen. 


Cir.  X.]  JURY.      MISCONDUCT.  239 

§  61.  If  a,  jury  comes  in  without  permission,  not  liaving 
agreed,  a  direction  by  the  court  for  them  to  retire  is  not  a 
sending  out  within  the  meaning  of  a  statute,  which  pro- 
liibits  a  jury's  being  sent  out  a  third  time.^  , 

§  62.  After  a  jury  had  retired,  they  came  again  into 
court,  to  hear  explanations  from  a  witness,  who  stated  an 
additional  and  important  fact  not  before  stated  by  him, 
but  which  fact  the  court  immediately  told  the  jury  they 
were  to  disregard.  Held,  the  affidavit  of  the  juror,  stating 
that  he  founded  his  verdict  entirely  upon  this  additional 
fact,  would  not  authorize  a  new  trial.^(a) 

'  Emery  v.  Estes,  31  Maine,  155.        2  Hudson  v.  The  State,  9  Yerg. 

408. 

[a)  See  a  learned  and  elaborate  opinion,  relating  to  the  separation  of 
jurors,  and  the  change  of  the  ancient  law  upon  that  subject,  in  accom- 
modation to  the  increased  length  of  modern  trials,  and  the  altered  cus- 
toms of  modern  society,  in  Stephens  v.  The  People,  &c.,  19  N.  Y.  (5 
Smith)  550,  per  S.  B.  Strong,  J.  The  judge  may  receive  a  verdict  after 
the  court  has  adjourned.  Mclntyre  v.  People,  38  111.  514.  Where  the 
crier  has  proclaimed  adjournment,  and  the  judges  have  risen,  but  both 
judges  and  counsel  remain  in  the  court-room  ;  the  order  for  adjournment 
may  be  recalled,  and  a  verdict  received.  Person  v.  Neigh,  52  Penn.  199. 
A  jury,  having  sealed  up  their  verdict,  brought  it  into  court  the  next 
morning,  when  it  was  discovered  that  eleven  jurors  only  were  present, 
the  other  juryman  being  sick  and  unable  to  leave  his  home.  One  of  the 
counsel  declining  to  assent  to  the  rendering  of  the  verdict  by  the  eleven, 
the  court  adjourned  to  the  house  of  the  sick  juror,  and  there  the  jury 
rendered  their  verdict,  which  was  afterwards  publicly  announced  by  the 
clerk  in  the  court-room.  Held,  no  error.  King  v.  Faber,  51  Penn.  387. 
A  jury  returned  a  verdict  for  the  plaintiff  to  the  clerk  after  adjournment 
of  the  court,  but  in  presence  of  the  judge,  and  by  his  direction,  under- 
standing that  there  was  an  agreement  of  counsel  that  this  should  be 
done.  The  next  morning,  in  open  court,  in  consequence  of  objections 
of  the  defendant,  the  jury  were  sent  to  their  room  with  the  papers,  when 
the  defendant  (knowing  the  result  of  the  trial)  moved  for  a  continuance 
on  the  ground  of  newly  discovered  evidence.  This  was  sustained,  and 
the  jury  were  called  in  and  ordered  to  erase  their  verdict.  Ueld,  the  ver- 
dict should  have  been  recorded  and  the  motion  denied.  Hugley  v.  Hol- 
stein,  34  Geo.  572.     A  jury  having  returned  a  verdict,  a  poll  was  de- 


240  THE    LAW    OF    NEW    TRIALS.  [CIL  X. 

§  Go.  It  is  now  the  general  rule,  that  the  affidavit  of 


inanded,  and  in  response  to  the  question,  "  Is  this  your  verdict  ?"  one 
juror  answered,  "  No,  but  I  consented  to  it;"  and,  on  the  question  being 
repeated,  answered,  "  Yes."  The  court  refused  to  allow  the  juror  to  be 
further  interrogated.  Held,  the  response  of  the  juror  did  not  show  that 
he  dissented  from  the  verdict.  Mitchell  v.  Parks,  26  Ind.  354.  Before 
the  jury  retire,  in  a  criminal  case,  it  is  necessary  that  the  usual  oath  be 
administered  to  the  ofiiccr  taking  them  in  charge.  Brucker  v.  State,  16 
"Wis.  333.  If  a  jury  render  their  verdict  without  leaving  the  court,  there 
is  no  necessity  of  their  being  put  under  the  charge  of  an  officer,  or  of  his 
being  sworn.  Meyer  v.  Foster,  16  Wis.  294.  The  court  may  inquire  of 
the  jury  their  intention  and  will  in  reference  to  their  finding,  when  there 
is  doubt  or  uncertainty  in  its  language,  and  order  the  verdict  thus  ascer- 
tained to  be  recorded.  Gipson  v.  State,  38  Miss.  295.  The  court  may 
permit  a  jury  to  retire,  after  having  brought  in  a  formal  verdict,  for  the 
purpose  of  correcting  an  error  in  computation,  or  reconsidering  their 
verdict.  Martin  v.  Morelock,  32  111.  485.  A  direction  to  the  jury  to 
seal  up  their  verdict  and  separate  does  not  dispense  with  their  personal 
attendance  in  court,  when  the  verdict  is  opened ;  and,  if  any  of  them 
dissent,  the  verdict  cannot  be  recorded.  Ibid.  A  jury  may  inform  the 
court,  before  their  verdict  is  recorded,  that  a  mistake  has  been  commit- 
ted, or  ask,  generally,  that  they  may  be  permitted  to  retire,  and  recon- 
sider their  verdict,  the  one  agreed  upon  not  being  satisfactory  to  them. 
Ibid.  Unless  there  be  evidence  of  abuse,  a  verdict  will  not  be  set  aside 
merely  from  the  fact,  that,  after  rendering  it,  the  jury  separated  at  the 
adjournment  of  the  court,  and,  at  the  coming  in  of  the  court,  had  the 
papers  again  committed  to  them,  and  modified  their  verdict.  Nims  v. 
Bigelow,  44  X.  II.  376.  Nor  where  a  jury,  after  having  agreed  upon  a 
verdict,  separated,  and,  upon  coming  in  on  the  following  day,  returned 
the  verdict  under  seal,  stating  that  they  had  agreed,  but  had  made  a  mis- 
take in  their  figuring,  and  the  court,  without  opening  the  seal,  directed 
the  jury  to  retire  again  and  reconsider  their  verdict.  Nininger  v.  Knox, 
8  Min.  140.  Nor  where  a  jury,  in  a  capital  case,  separated  without  per- 
mission, and  some  of  them  conversed  with  third  persons,  before  rendering 
a  verdict;  if  it  is  shown  that  no  injury  to  the  defendant  resulted  there- 
from. People  V.  Symonds,  22  Cal.  348.  In  Florida,  it  is  a  sufiicieut 
recording  of  a  verdict  of  guilty,  in  order  that  the  jury  may  be  discharged, 
if  they  have  recorded  the  verdict  on  the  book  of  the  indictment,  and 
brought  it  into  court,  and  each  juror  stated  that  he  found  the  prisoner 
guilty.  O'Connor  v.  State,  9  Flori.  215.  Where  both  parties  consented 
that  the  jury  should  "seal  their  verdict  when  agreed  upon,  and  deliver 
the  same  to  the  clerk,  and  disperse  to  their  homes  and  not  return  :" 
neither  could  object  that  the  verdict  was  received  and  recorded  without 


en.  X.]  JURY.      MISCONDUCT.  241 

a    juror    will    not    be    received    to    impeach    his    ver- 

being  delivered  in  open  court.  Burliugame  v.  Burlingame,  16  Wis.  285. 
The  following  recent  case — Willard  v.  Shaffer,  Leg.  Intell. — illustrates 
the  general  requisitions  of  the  law  in  reference  to  verdicts.  Per  Shars- 
wood,  J.  The  second  and  third  reasons  complained  of  are  irregularity 
in  the  rendition  of  the  verdict.  "  Because  no  verdict  was  rendered  by 
the  jury,  but  the  jury  simply  approved  a  suggestion  of  the  prothonotary." 
The  fact  is  that  the  jury  having  been  charged,  on  the  adjournment  of  the 
court,  were  told  that  if  they  agreed  before  the  court  met  they  might  seal 
their  verdict  and  separate.  The  sealed  verdict  was  accordingly  brought 
in  next  morning,  opened  by  the  judge,  and  handed  to  the  prothonotary^ 
that  the  verdict  might  be  taken  in  the  usual  way.  The  prothonotary 
then  asked  the  jury  to  listen  to  the  verdict  as  the  court  had  ordered  it  to 
be  recorded,  and  added  as  usual  "  and  so  you  all  say."  To  this  no  one 
of  the  jurors  made  any  objection,  nor  the  defendants  or  their  counsel. 
Whether  they  or  either  of  them  were  present  I  do  not  remember.  I 
have  no  doubt  that  this  is  entirely  sufficient.  This  mode  of  taking  ver- 
dicts when  they  are  handed  in  sealed  is,  I  believe  common  in  many  parts 
of  the  State,  and  has  heretofore  been  pursued  in  this  court.  I  prefer 
much  the  more  formal  mode  of  taking  the  verdict  ore  tenus  from  the 
jury  by  the  mouth  of  their  foreman.  There  is  no  reason  why  there 
should  be  any  difference  whether  there  is  or  is  not  a  sealed  verdict.  A 
verdict,  according  to  the  common  law,  was  either  privy  or  public.  A 
privy  verdict  is  when  the  judge  hath  left  or  adjourned  the  court,  and 
the  jury,  being  agreed,  in  order  to  be  delivered  from  their  confinement, 
obtain  leave  to  give  their  verdict  privily  to  the  judge  out  of  court,  which 
privy  verdict  is  of  no  force,  unless  afterwards  affirmed  by  a  public  ver- 
dict given  openly  in  court;  wherein  the  jury  may,  if  they  please,  vary 
from  the  prior  verdict.  3  Blackst.  Com.  377.  For  the  jury  was  charged 
openly  in  court,  and  in  court  their  verdict  ought  to  be  received,  and  that 
which  they  pronounce  openly  in  court  shall  be  taken  to  be  their  verdict. 
And  although  it  is  usual  to  take  the  verdict  privily  when  the  jurors  are 
agreed,  yet  the  law  does  not  necessarily  require  this,  but  it  is  only  out  of 
courtesy  for  the  ease  of  the  jurors,  and  in  such  case  what  they  then  say 
shall  not  be  looked  upon  as  their  verdict  until  it  be  openly  pronounced 
in  court.  Saunders  v.  Freeman,  Plowd.  209.  With  us  a  practice  equally 
safe  and  convenient  has  obtained  of  permitting  the  jury  to  reduce  their 
finding  to  writing,  and,  after  sealing  it  up,  to  separate  till  the  meeting 
of  the  court,  when,  the  paper  being  handed  to  the  judge,  their  verdict  is 
received  from  the  lips  of  the  foreman  and  recorded  in  the  usual  way. 
Per  C.  J.  Gibson,  10  S.  &  R.  90.  The  same  practice  has  generally  ob- 
tained in  our  sister  States,  but  both  with  us  and  in  all  of  them  it  is  held,^ 
as  far  as  I  have  found  without  a  single  exception,  that  the  sealed  verdict 

16 


242  THE   LAW    OF   NEW    TRIALS.  [CH.  X. 

dict.X'?)  More  especially,  to  sliow  what  may  have  trans- 
pired among  the  jury  in  the  jury-room,  while  considering 
the  case  and  agreeing  upon  their  verdict.^  Such  affidavit 
has  been  called  an  "afterthought  of  the  jurors."^  And  the 
rule  is  justified  u}>on  the  ground  that  "it  might  some- 
time happen  that  a  juryman,  being  a  friend  to  one  of  the 

'  O'Barr  t.  Alexander,  37  Geo.  Vaise  v.  Dclaval,  1  T.  R.  11   (a 

195;  Jacobs  v.  Dooly,  1  Idaho  Terr,  leading  case) ;  Abel  v.  Kennedy,  3 

36  ;  Allison  v.  People,  45  111.  :57  ;  Iowa,  47. 

Knowlton   v.  ]\rc:\Ialion,  13   ]\Iin.  =  Leighton  v.  Sargent,  11  Fost. 

38G;  Hall  v.  Robison,  25  Iowa,  91;  119;  State  v.  Tindall,  10  Ricli.  212. 

Bishop  V.  The  State,  9  Geo.  121  ;  ^  Per  Lee,  C.  J.,  Rex  v.  Simons, 

Bladen  v.  Cockey,  1  Har.  6c  McH.  Sayre,  35. 
230  ;  Prior  v.  Powers,  1  Keb.  811 ; 


partakes  of  all  the  characteristics  of  the  privy  verdict.  It  is  no  verdict 
of  itself.  The  verdict  recorded  iu  court  is  the  only  verdict :  the  paper 
returned  by  the  jury  is  not  evidence,  nor  is  it  to  be  filed  or  preserved. 
The  jury,  when  they  come  to  pronounce  their  verdict  iu  open  court,  may 
depart  from  it  and  deliver  another  one.  Domick  et  al.  v.  Reichenbach, 
10  S.  &  R.  84;  Rees  v.  Stille,  2  Wright,  138.  If  on  being  polled  one 
of  the  jurors  dissent,  they  may  be  sent  out  again  to  agree  on  their  ver- 
dict. Bunn  V.  Hoyt,  3  Johns.  255;  Root  v.  Sherwood,  6  Johns.  68; 
Blackley  v.  Sheldon,  7  Johns.  32  ;  Douglass  v.  Toucy,  2  AVend.  355 ;  Fox 
V.  Smith,  3  Com.  23;  Jackson  v.  Hawks,  2  Wend.  619;  Johnson  v. 
Howe,  2  Gilon,  342 ;  Rigg  v.  Cook,  4  Gilraan,  351 ;  Perry  v.  Mays,  2 
Bailey,  356  ;  Lawrence  v.  Strauss,  11  Pick.  501.  In  this  last  cited  case, 
C.  J.  Shaw  says  :  "  If  indeed  the  jury  by  collusion  should  declare  them- 
selves agreed,  when  they  are  not,  in  order  to  induce  the  ofTicer  to  permit 
them  to  separate,  or  if  one  juror  should  declare  his  assent  with  an  intent 
afterward  to  dissent  in  court,  it  would  undoubtedly  be  a  great  misde- 
meanor and  render  the  party  liable  to  summary  punishment."  These 
authorities  abundantly  support  the  position,  that  in  the  case  of  a  sealed 
verdict  the  proper  formal  manner  of  taking  the  vcVdict  is  that  it  should 
be  pronounced  openly  by  the  foreman;  but,  for  the  reasons  already  given, 
I  do  not  think  this  verdict  ought  to  be  set  aside  for  this  mere  defect  of 
form,  when  it  has  been  openly  read  and  assented  to  by  the  jury  and 
recorded  by  the  court.     Motion  refused. 

(a)  More  especially,  that  jurors  are  not  hound  to  inculpate  them- 
selves. Nolen  V.  State,  2  Head,  520.  The  rule  applies  to  grand  jurors. 
Cora.  V.  Skeggs,  3  Bush,  19.  But  a  grand  juror  may  testify  that  a  wit- 
ness swore  differently  on  the  trial  and  before  the  grand  jury.  Com.  v. 
Mead,  12  Gray,  1G7. 


en.  X.]  JURY.      MISCONDUCT.  243 

parties,  and  not  being  able  to  bring  over  liis  companions 
to  his  opinion,  might  propose  a  decision  by  lot,  with  a 
view,  afterwards,  to  set  aside  the  verdict  by  his  own  affi- 
davit, if  the  decision  should  be  against  him."^  So  also,  it 
is  said,  one  might  testify  one  way,  another  differently. 
"  This  would  open  a  novel  and  alarming  source  of  litiga- 
tion, and  it  would  be  difficult  to  say  when  a  suit  was  ter- 
minated."^ And,  in  answer  to  the  obvious  suggestion, 
that  the  confession  of  a  misbehaving  juror  should  be  ad- 
missible like  that  of  any  other  criminal;  it  is  said,  "It 
tends  to  defeat  his  own  solemn  act  under  oath,  where 
third  persons  are  interested. — Its  admission  would  ojien  a 
door  to  tamper  with  jurymen. — It  might  be  the  means,  in 
the  hands  of  a  dissatisfied  juror,  to  destroy  a  verdict  at 
any  time,  after  he  had  assented  to  it. — It  would  unsettle 
all  the  verdicts  in  the  country."^  Such  evidence  is  also 
sometimes  excluded  upon  the  ground  of  hearsay.'^  So  in 
a  late  case  it  is  remarked,  "  It  is  a  rule  founded  upon  ob- 
vious considerations  of  public  policy,  and  it  is  important 
that  it  should  be  adhered  to,  and  not  broken  in  upon  to 
aftbrd  relief  in  supposed  hard  cases."  And  the  rule  also 
excludes  the  affidavit  of  a  party  or  of  a  stranger  as  to  the 
jurors'  statements.^  Thus  the  affidavits  of  jurors  cannot 
be  received  to  show,  that  the  deponents,  in  agreeing  to 
the  amount  of  the  verdict,  took  into  consideration  a  cause 
of  action  in  addition  to  that  for  which  the  suit  was 
brought.^  So  an  affidavit  of  a  juror,  especially  if  made 
at  the  next  term  after  the  trial,  that  he  was  influenced  in 


'  Per  Mansfield,  C.  J.,  Owen  v.  721;  Downer  v.  Baxter,  30  Vt.  467; 

Warburton,  1  N.  R.  326.  Tucker  v.  Town  Council,  &c..  5 

2  Robbins  v.  "Wendover,  2  Tyl.  R.  I.  558;  Watson  v.  Same,  ib.  562; 
11.  Bull's  Case,  14  Graft.  613  ;  Cole- 

3  Willing  V.  Swasey,  1  Browne,  man  v.  State,  28  Geo.  78;  Brown  v. 
123.  State,  ib.  199  ;  Burns  v.  Paine,  8 

*  Tuckers.  Town  Council,  &c.,  5  Tex.  159;  Boston,  &c.  v.  Dana,  1 

R.  I.  558;  Watson  v.  Same,  ib.  562.  Gray,  83  ;  The  People  v.  Carnal,  1 

5  Per  Shaw,  C.  J.,  Cook  v.  Cast-  Parker  C.  R.  256  ;  Smith  v.  Cul- 

ner,  9  Cush.  278;  Allison  v.  People,  bertsou.  9  Rich.  106. 

45  111.  37;  Dunn  i\  Hall,  3  Blackf.  ^  Brownell  v.  McEwen,  5  Deuio, 

82.     See  Mason  v.  Russell,  1  Tex.  367. 


244  THE   LAW    OF   NEW    TRIALS.  [CH.  X. 

his  verdict  by  what  he  sets  forth  as  the  charge  of  the 
judge,  is  no  ground  for  a  new  trial. ^  Nor  an  affidavit  by- 
four  of  the  jury,  made  three  weeks  after  the  trial,  that 
'•the  verdict  was  not  their  verdict,  and  that  they  had  not 
ao-reed  to  it."^  So  after  a  verdict  has  been  returned  by  the 
foreman,  read  to  the  jury  without  dissent  expressed,  and 
recorded,  and  the  jury  have  separated ;  an  affidavit  of  one 
of  them  that  he  did  not  agree  to  the  verdict  cannot  be 
received.^  Or  that  he  did  not  voluntarily  assent  to  the 
verdict.^  More  especially  three  days  after  the  verdict.^ 
So  where  a  juror,  upon  being  polled,  assents  to  the  verdict, 
he  cannot  be  allowed  to  say  that  he  was  intimidated  into 
compliance  by  the  foreman.^  So  affidavits  are  not  admis- 
sible that  one  or  more  of  the  jurors  misunderstood  the 
charge.^  More  especially  where  the  affidavits  arc  made 
several  days  after  the  verdict  f  or  at  the  next  term  of  the 
court  :^  and  if  the  verdict  is  in  all  respects  fair,  and,  in 
the  judgment  of  the  court,  in  accordance  with  the  evi- 
dence.i"  (See  §  69.)  Nor  will  the  affidavit  of  a  juror  be 
received,  that  he  misunderstood  the  evidence,^^  or  disre- 
garded the  evidence  and  the  charge  ','^%a)  even  in  a  capital 
case.^3  It  is  said,  that  to  admit  affidavits  as  to  the  grounds 
of  the  verdict,  "would  be  more  objectionable  than  to 

'  Campbell  v.  Skidmore,  1  Tex.  lor,  4  Humph.  516 ;  Morris  v.  The 
475.  State,  3  ib.  333  ;  Mirick  v.  Hemp- 

2  Reaves  b.  Moody,  15  Rich.  L.     hill,  1  Hemp.  179, 

312.  ^  Handy  v.  Providence,  &c.,  1 

3  Breck  v.  Blanchard,   7  Fost.     R.  I.  400. 

100.  9  Campbell  v.  Skidmore,  1  Tex. 

4  Cook  V.  Sypher,  3  Clarke,  484;    475. 

7,  413;  McCombs  v.  Chandler,   5       '"  Ilarnsbarger?).  Kinney,  GGratt. 

Ilarring.  423.  287. 

5  State  V.  Douglass,  7  Clarke,413.       "  Clark  v.  Carter,  12  Geo.  500. 

6  Boetge  V.  Lander,  20  Tex.  105.        '^  Thomae  v.  Zushlag,  25  Tex. 

7  Davenport    v.    Cummings,    15  (Supp.)225. 

Iowa,  210  ;    llolman  v.  Riddle,  8       '^  ^Vard  v.  The  State,  8  Blackf. 
Ohio,  N.  S.  384 ;  Saunders  v.  Ful-    101  ;  2  Mur.  37. 

(a)  A  new  trial  will  not  be  granted,  on  the  affidavits  of  jurors  that 
the  jury  misapprehended  the  testimony,  where  it  does  not  appear  that 
they  had  any  rcasonal)lc  ground  for  such  misapprehension.  Jack  v. 
Naber,  15  Iowa,  450 ;  Moflit  v.  Rogers,  ib.  453. 


en.  X.]  JURY.      MISCONDUCT.  245 

receive  those  disclosing  misconduct."     It  would  render 
"jury  trial  but  a  vexatious  ceremony."' 

§  64.  So  partiality  of  a  juror  cannot  be  shown  by  the 
testimony  of  the  juror  himself  or  of  the  other  jurors.^ 
And  affidavits  are  not  admissible  to  prove  a  tossing  up. 
It  is  said,  the  evidence  must  come  "from  some  other 
source ;  such  as  from  some  person  having  seen  the  trans- 
action through  a  window. "^  Nor  to  prove  that  the  amount 
of  damages  was  arrived  at  by  an  average  of  the  sums 
severally  assumed  or  marked  by  the  jurors.^  (See  §  69.) 
So,  although  a  statute  expressly  authorizes  the  affidavits 
of  jurors  for  the  purpose  of  a  new  trial,  they  are  not  admis- 
sible to  prove  that  the  verdict  was  reached  by  marking  and 
striking  an  average.^  !N"or,  in  a  criminal  case,  that  the  juror 
had  formed  and  expressed  an  opinion  before  the  trial,^  (See 
§  69.)  So  the  affidavit  of  a  juror,  that  he  had  made  a 
bet  upon  the  result  of  a  State  trial,  and  that  he  did  not 
believe  the  prisoner  knew  of  it  at  the  time  he  (the  juror) 
was  sworn,  is  not  sufficient  evidence  of  the  prisoner's 
ignorance  of  the  bet ;  he  must  deny  his  knowledge  upon 
oath.7 

§  65.  So  it  is  no  ground  for  a  new  trial,  that  several  of 
the  jur}^,  after  trial,  stated  that  they  had  misconceived  a 
material  fact,  sworn  to  by  a  witness,  who  also  testified 
that  the  fact  was  otherwise  than  as  understood  by  the 
jur3^^  So,  in  a  slander  suit,  counsel  declared,  that,  as  the 
suit  was  brought  to  vindicate  character,  damages  would 
be  released.  Held,  that  jurymen  could  not  be  heard  to 
say  that  such  improper  declaration  influenced  their  ver- 


•  Ibid.,  8  Blackf.  101.  s  Forshee  d.  Abrams,  2  Clarke, 
2  Cook  V.  Castuer,  9  Cusli.  266.  571. 

'  Per  Ld.    Mansfield,    Vaise  v.        «  The   People   v.   Baker,  1  Cal. 

Delaval,  1  T.  R.  11.  403. 

*  Pleasants    v.    Head,    15    Ark.        '  Booby  v.  The  State,  4  Yerg. 
403  ;  Boston,  &c.  v.  Dana,  1  Gray,  111. 

83.  *  Lester  v.  Goode,  2  Murph.  37. 


246  THE   LAW    OF   NEW    TRIALS.  [CII.  X. 

diet.'  Xor  arc  the  affidavits  of  jurors  admissible,  to  show 
wliat  were  their  iniprcssions  as  to  the  effect  of  tlie  fiiiding,(a) 
and  that  they  intended  something  difierent  from  what 
they  found  by  tlieir  verdiet ;  nor  to  show  tlie  ]»rinciples 
u})on  wliich  the  verdict  was  founded/  nor  the  reason 
and  ground  of  tlie  determination,  and  the  motives  which 
governed  their  conduct.^ 

§  QQ.  As  we  have  seen,  the  rule  in  question  excludes  the 
affidavit  of  one  juror  to  the  misconduct  of  other  jurors  in 
the  room.  As,  for  example,  a  statement  of  another  one 
to  the  jury  about  the  case.^  Or  that  the  jury  considered 
and  acted  upon  evidence  which  they  were  instructed  to 
disregard,  and  that  it  materially  influenced  them.'  Or 
concerning  impressions  as  to  the  effect  of  the  verdict."  Or 
that  one  juror  did  not  concur,  where  the  judge  ordered  a 
verdict.^  Or  what  one  of  their  number  stated  to  his  fel- 
lows, after  they  had  retired,  concerning  the  character  of 
the  parties.^  So,  in  an  action  relating  to  the  condition  of 
a  vessel  at  the  time  she  was  sold,  a  new  trial  was  moved 
for,  upon  the  ground  of  a  juror's  having  stated  in  the 
jury-room  that  he  had  examined  the  vessel  before  the 
trial,  and  was  of  opinion  that  she  was  very  rotten.  But 
it  was  held  that  this  could  not  be  proved,  either  by  the 
juror  himself,  or  the  other  jurors.^     So,  in  trover,  a  single 

'  Larkinsw.  Tarter,  3  Sneed,  681.        s  Haiglit  «.   Turner,    21    Conn. 

2  Folsom  V.  Brawn,  5  Fost.  114  ;     593. 

12  Geo.  ijOO.  6  People   v.   Columbia,    itc,    1 

3  llaunum    i\   Belchertown,    19     ^Yc'nd.  297. 

Pick.  311;  The  State  tJ.Doon,  Il.M.        '  Savillo   v.   Fiirnham,   2  M.   & 

Charlt.  1  ;   Stone  «.  The   Stale,  4  lly.  21 G. 

Ilumpli.    27;    Cain  v.  Cain,  1  B.        **  Folsom ».  Manchester,  11  Cush. 

Munroe,  213 ;  Meade  v.  Smith,  13  334. 

Conn.  346.  ^  Cook  v.  Castner,  9  Cush.  206. 

1  Cook  V.  Castner,  9  Cush.  278. 

{(()  It  is  remarked  in  a  hxte  case  :  "  The  legal  consequences  of  it  they 
are  not  presumed  to  know,  and,  in  general,  do  not  know.  The  moral 
consequences  of  it  neither  tliey  nor  any  man  can  foresee."  Per  Ames, 
C  J.,  Tucker  v.  The  Town,  <fec.,  5  R.  I.  561. 


CH.  X.]  JURY.      MISCONDUCT.  247 

witness  testified  as  to  the  cost  of  the  goods.  On  motion 
for  a  new  trial,  held,  affidavits  of  the  jurors  were  inad- 
missible that,  in  the  assessment  of  damages,  they  had  con- 
sidered themselves  bound  to  follow  the  opinion  of  the 
witness,  whereas,  if  they  had  felt  at  liberty  to  exercise 
their  own  judgment,  they  would  have  estimated  the 
goods  at  a  low  rate.^  So  the  affidavit  of  a  juror  is  inad- 
missible, that  during  the  trial  he  visited  the  spot  where 
the  collision  in  question  occurred,  for  the  purpose  of  in- 
forming himself  as  to  the  subject-matter  of  the  trial.- 

§  67.  In  general,  as  has  been  stated,  the  testimony  of  a 
juror  may  be  received  to  exculpate  himself,  and  to  sustain, 
though  not  to  impeach,  a  verdict.^(rt)  And  there  are  nu- 
merous cases  favoring  the  admissibility  of  affidavits  upon 
any  point  connected  with  the  verdict ;  although  the  weight 
of  authority  is  the  other  way.  In  a  case  of  high  authority 
it  is  said:  "  It  would  perhaps  hardly  be  safe  to  lay  down 
any  general  rule  on  this  subject.  Unquestionably,  such 
evidence  ought  alwavs  to  be  received  with  great  caution. 


1  Murdock  v.  Sumner,  22  Pick.        ^  gtate  v.  Ayer,  3  Fost.  301.  See 
156.  Hall  V.  Robiusou,  25  Iowa,  191. 

^  Chadbouru  v.  Fraukliu,  5  Gray, 
333. 


(a)  The  contrary  has  been  held  in  case  of  an  unauthorized  separation. 
Hines  v.  The  State,  8  Humph.  597.  If  a  juror  has  formed  and  expressed 
before  trial  a  decided  opinion  as  to  the  guilt  of  the  prisoner,  he  cannot, 
after  verdict,  show  himself  competent,  by  swearing  that  his  finding  was 
influenced  solely  by  the  evidence.  McGufBe  v.  State,  17  Geo.  497.  On 
motion  for  a  new  trial,  on  the  ground  that  opinions  unfavorable  to  the 
accused  had  been  expressed,  before  the  impanelling,  by  some  jurors,  the 
testimony  of  these  jurors  is  admissible,  both  to  contradict  this  state- 
ment, and  to  show  that  they  were  free  from  prejudice.  State  v.  Howard, 
17  N.  H.  171.  An  amendment,  passed  in  1862,  to  the  (Gal.)  practice  act 
of  1851,  §  193,  allowing  misconduct  of  the  jury  to  be  proved  by  any  of 
their  number,  by  affidavit,  applies  to  all  motions  for  a  new  trial  for  such 
misconduct,  after  the  passage  of  the  amendment,  although  the  verdict 
was  rendered  before  such  passage.     Douner  v.  Palmer,  23  Cal.  40. 


248  THE    LAW    OF    NEW    TRIALS.  [CU.  X. 

But  cases  might  arise  in  which  it  would  be  impossible  to 
refuse  them  without  violating  the  plainest  principles  of 
justice."^  And,  in  a  case  where  such  evidence  w^as  ex- 
cluded, the  court  remark:  "The  court  are  not  prepared  to 
say  that  this  is  a  rule  without  exception.  There  may  be 
cases  of  manifest  mistake  in  computation,  or  other  obvious 
error,  where  there  ai'e  full  means  of  detecting  and  cor- 
recting it,  where  it  would  be  proper  to  interfere."^ 

§  68.  The  remark  is  made,  in  reference  to  the  more 
modern  doctrine,  by  which  such  affidavits  are  excluded : 
"It  is  singular,  indeed,  that  almost  the  only  evidence  of 
which  the  case  admits  should  be  shut  out."^ 

§  69.  It  has  been  intimated,  that  the  affidavit  of  a  juror, 
though  inadmissible  to  show  anything  that  passed  in  the 
jury-room,  as  ground  of  new  trial,  might  be  evidence  of  a 
previous  bias,  manifested  by  what  passed  in  the  room, 
which  would  disqualify  the  juror,  and  thus  set  aside  the 
verdict.*  (See  §  64.)  So  affidavits  of  j urors  have  been 
received,  in  a  criminal  case,  to  show  that  they  entirely 
misunderstood  the  instructions  of  the  court.^  (See  §  63.) 
Or  an  agreement  that  each  one  should  "  mark,"  and  the 
average  of  the  sums  thus  designated  be  returned  as  their 
verdict.*'  (See  §  64.)  So  the  oath  of  a  juror  has  been 
admitted,  that  he  was  incompetent,  from  ignorance  of  the 


'  Per  Taney,  C.  J.,  U.  S.  v.  Reid,  Ball.  515  ;  The  People  v.  Vcrmil- 

12  IIow.  3G1.      See  Little  v.  Bird-  yea,  7  Cow.  108  ;    Rex  v.  Cook,  6 

well,  21  Tex.  597.  St.  Tri.  337 ;  Manix  v.  Malouy,  7 

2  Per  Shaw,  C.  J.,  Murdock  v.  Clarke,  81  ;   Ru1)le  v.  jNIcDonald, 

Sumner,  22  Pick.  157.     See  Dana  ib.  90;  Schanler  v.  Porter,  ib.  482 

V.  Tucker,  4  John.  487  ;  Philips  v.  (Code,  §  1810). 
Fowler,    Barnes,    441;    Avlett    v.        ^  Pc-'sir  James  Mansfield,  C.J. , 

Jewell,  2  W.  Bl.  1299;  S'mith  v.  Owen  w.  Warburton,  1  N.  R.  32G. 
Cheetham,  3  Caines,  57;  Bellish  v.  ^  Cook  v.  Castner,  9  Cush.  278. 
Arnold,  Bunb.  51  ;  Pai-r  v.  Seames,        =  Packard  v.  The  United  States, 

Barnes,  438 ;    Brant  v.   Fowler,  7  1  Iowa,  225. 

Cow.  5G2  ;  Alcott  v.  Boston,  &c.,        e  Manix  t).  Malony,  7  Clarke,  81; 

11  Cush.  91  (where  the  point  was  Schanler  v.  Porter,  ib.  482. 
left    doubtful) ;   U.  S.  v.  Fries,  3 


en.  X.]  JURY.      MISCONDUCT.  249 

English  language.^  Or  that  the  verdict  was  rendered 
under  a  mistake  as  to  its  legal  effect.^  So,  by  way  of 
exculpation^  affidavits  are  admissible,  that  papers  which 
went  to  the  jury  were  not  read.'  So  upon  the  question; 
whether  depositions,  not  in  the  case,  but  accidentally  de- 
livered to  the  jury,  were  read  by  them;  the  jury  were 
first  inquired  of,  and  retired  to  inquire  of  each  other ;  and 
the  foreman  then  answered  for  them.  The  next  day,  some 
of  the  jury  having  suggested  that  his  answer  was  not  suf- 
ficiently explicit,  he  made  a  further  answer,  denying  that 
the  depositions  were  read.^  So  affidavits  of  jurors  were 
admitted,  that  they  thought  the  majority  would  decide 
the  case.^  Or  that  a  juror  in  a  capital  case  assented  to  the 
verdict  of  guilty,  on  the  representation  of  others  that  the 
governor  would  pardon  on  the  jury's  recommendation.^ 
Or  to  show  misdirection  as  to  damages.^  So  the  testi- 
mony of  a  juror  is  admissible,  that,  pending  the  trial,  he 
called  upon  the  defendant  and  obtained  from  him  a 
printed  copy  of  the  evidence  in  a  former  trial  of  the 
cause.^  So  the  affidavit  of  a  juror  was  admitted,  to  prove 
that,  during  an  adjournment  of  the  court,  a  person  inti- 
mately connected  with  the  plaintifi"  wrote  a  letter  to 
such  juror,  requesting  him  to  go  and  view  the  premises  ; 
that  this  juror  did  not  go,  but  three  others  went,  and, 
according  to  their  own  admissions,  that  they  were  paid 
for  so  doing.  The  testimony  of  the  jurors  who  were  guilty 
of  misconduct,  or  evidence  of  their  admissions,  was  held 
to  be  incompetent  to  prove  such  misconduct ;  but  another 
juror,  not  guilty,  may  prove  it.^  And,  where  the  affidavit 
of  an  attorney  was  offered,  to  the  admission  of  some  of 
the  jurymen,  that  they  agreed  to  write  all  the  names  on 

'  Lafayette  &c.  v.  New,  &c.,  13        ^  Crawford  v.  The  State,  2  Yerg. 

Ind.  90.  GO.     See  Com.  v.   Drew,  4  Mass. 

2  MofFett   v.   Bowman,  6   Gratt.  399 ;  Suttrell  v.  Duy,  1  Mur.  94. 
219.  7  Cavkendall,  6  Cow.  53. 

3  Hackley  v.  Hastie,  3  Jolin.  253.         ^  Hetfron  v.  Gallupe,  55  Maine, 
1  Hix  V.  Drurv,  o  Pick.  29G.  5G3. 

5  Cocliran  v.  Street,  1  Wash.  79.        a  Deacon  v.  Shreve,  2  K  J.  176. 


250  THE   LAW    OF   NEW    TRIALS.  [CII.  X. 

papers,  and  that  the  first  six  drawn  should  decide  the 
verdict ;  tlie  evidence  was  rejected  as  hearsay^  the  court 
remarking  that  the  affidavits  of  the  jurors  themselves 
should  be  offered.'  So  where  the  intent  of  tlie  party  was 
essential  to  make  his  act  criminal;  the  affidavit  of  the 
jurors  was  received,  that  in  consequence  of  a  noise  and 
crowd  in  the  court-room  they  did  not  hear  the  judge's 
instruction  to  that  effect,  and  that  one  of  them  called  out 
aloud  at  the  time  of  giving  the  verdict — 710  intent^  no 
intent.'^  So,  where  there  were  two  issues,  and  a  verdict  for 
the  defendant;  the  affidavit  of  eight  jurymen  was  re- 
ceived, that  they  meant  to  find  one  issue  for  the  plaintift*, 
and  one  for  the  defendant.^ 

§  70.  AVhere  a  motion  was  made  in  the  court  below,  in 
a  capital  case,  to  set  aside  a  verdict  upon  the  ground  of 
improper  conduct  in  the  jurors,  and  the  motion  was 
founded  upon  affidavits ;  the  Supreme  Court  of  North 
Carolina  held  that  they  would  not  look  at  the  affidavits, 
but  could  decide  only  upon  the  record  presented  to  them ; 
and  that  in  such  case  the  fticts  were  to  be  ascertained  by 
the  court  below,  and  spread  upon  the  record.^ 

§  71.  Affidavits  charging  the  jury  with  irregularities 
and  misconduct  in  the  progress  of  a  trial,  founded  on 
information  and  belief,  are  not  sufficient  to  set  aside  a 
verdict.  The  irregularities  and  misconduct  charged  must 
be  stated  positively  and  specifically,  and  be  sustained  by 
oath.'* 

§  71a.  A  few  miscellaneous  points  farther  illustrate  the 
same  general  subject. 

§  72.  The  court  may  inquire  of  the  jury  upon  Avhat 

'  Ayk'tt®.  Jewell,  3  W.Bl.  1399.         »  The  State  v.  Godwin,  5  Irod. 

2  Kcx  V.  Simons,  Say  re,  35.  401. 

3  Cogan  V.  Ebden,  l"  Burr.  383.  '''  Stone  v.  The  State,  4  Ilumpli. 

27. 


en.  X.]  JURY.      MISCONDUCT.  251 

grounds  tlicy  found  their  verdict,  even  in  the  absence  and 
without  consent  of  counsel;  and  the  answer  may  be  con- 
sidered upon  a  motion  for  a  new  trial. ^  So,  although  the 
jury  are  not  bound  to  state  the  principles  on  which  their 
verdict  is  founded ;  yet,  if  they  return,  with  the  verdict, 
a  statement  which  shows  errors  of  law,  or  of  admitted  fact, 
the  court  will  set  aside  the  verdict.^  So,  where  testimony 
is  given,  tending  to  show  that  the  jurors,  after  they  had 
retired,  had  in  their  possession  a  newspaper  containing  a 
part  of  the  charge  of  the  court ;  their  affidavits  may  be 
received  to  show  what  the  paper  was,  if  their  posses- 
sion and  use  of  it  do  not  involve  a  charge  of  improper 
motives  on  their  part.^  Or  to  what  passed  at  the  render- 
ing of  the  verdict.^  Or  "  that  the  clerk  made  a  mistake 
in  entering,  or  the  court  in  directing,  a  different  verdict."^ 

§  73.  But,  upon  the  subject  of  assigning  the  reasons  for 
a  verdict,  it  is  said :  "  Men  of  strong  minds  and  sound 
judgments,  who  are  very  sure  to  come  to  wise  and  just 
conclusions,  would,  if  called  upon  to  state  the  grounds  of 
their  opinions,  often  give  very  insufficient  and  unsatisfac- 
tory reasons  for  their  decisions.  The  secrecy  of  the  deli- 
berations and  discussions  of  the  jury,  and  the  exemption 
of  jurors  from  the  liability  of  being  questioned  as  to  their 
motives  and  grounds  of  action,  are  highly  important  to 
the  freedom  and  independence  of  their  decisions."''  Hence 
an  affidavit  of  the  jury  was  not  received,  that,  if  they  had 
known  their  verdict  would  be  doubled  by  the  court,  in  a 
case  where  the  law  provides  double  damages,  they  would 
not  have  agreed  to  the  verdict.  Judge  Morton  remarks : 
"They  were  saved  from  a  wrong  decision  by  their  forget- 
fulness  of  the  judge's  charge,  and  really  rendered  a  just 

»  Smith  V.  Powers,  15  N.  H.  546;        *  King  v.  WoodfeU,  5  Burr.  2667. 
Lawler  v.  Earle,  5  Allen,  22.  ^  Jackson  v.  Dickenson,  15  John. 

2  The  State  v.  Layton,  3  Harring.     309. 

469.  s  Per  Morton,   J.,    Hannuni   v. 

3  Farrar  v.  Ohio,  2  Ohio  (N.  S.),     Belchertown,  19  Pick.  313. 
54. 


252  THE   LAW    OF   NEW    TRIALS.  [CH.  X. 

verdict  on  leo;al  grounds,  when,  if  tlicy  had  known  the 
lawful  consequences,  they  w^ould  have  acted  otherwise."^ 

§  74.  It  is  not  error  for  the  court  to  refuse  to  hear  affi- 
davits or  witnesses,  ottered  for  the  purpose  of  proving  that 
a  juror  was  not  sworn.^  Or  two  jurors,  even  on  an  indict- 
ment.^ 

§  75.  The  affidavit  of  third  persons  as  to  what  they 
have  heard  jurors  say  respecting  their  verdict  is  inadmis- 
sible to  impeach  the  verdict."* 

1  Hannmn    v.    Bdchertown,    19  a  Brewer  i?.  Stato,  12  Tex.  248. 
Pick.  oto.  '  Drumuioiid  v.  Leslie,  5  Blackf. 

2  Bradley  v.   Bradlev,  13   Tex.  453. 
3C3. 


CII.  XI.]        ERKONEOUS   RULINGS   OR   INSTRUCTIONS. 


253 


CHArTER  XI. 

ERRONEOUS  RULINGS  OR  INSTRUCTIONS. 


1.  General  rule. 
5.  Omissions. 

9,  52,  58.   Immaterial  or  irrele- 
vant instructions. 
15.  Ambiguity. 

18.  Contlicting  instructions. 

19.  Misunderstood  instructions. 
23.  Instructions     construed    to- 
gether. 

26.  Adoption  of  language  of  the 
court  above. 

28.  Uncertainty. 

30.  Law  and  fact. 

32,  77.  Refusal  or  granting  of  a 
nonsuit. 

35.  Ruling  by  which  evidence 
was  rendered  unnecessary. 

37.  As  to  sufficiency  or  insuffi- 
ciency of  evidence. 

39.  Conflict  of  evidence,  or  the 
reverse. 

41,  72,  139.  Tendency  and  effect 
of  the  evidence. 

43.  Instructions  as  to  the  law — 
limitations. 

44.  Preliminary  remarks,  &c.,  to 
the  jury  ;  comments  upon  the  evi- 
dence ;  illustrations. 

52.  j\Iateriality  of  the  remarks. 

53.  Refusal  to  comment  upon  the 
evidence. 

54.  Exceptions  to  the  prevailing 
rule ;  erroneous  interference  with 
the  facts  and  evidence. 

55.  Instructions  as  to  only  part 
of  the  case. 

56.  Instructions  based  on  the  evi- 
dence. 

58.  Abstract  instructions. 

59.  Miscellaneous  points. 

62.  Presumptions  from  facts 
proved. 

63.  Instructions  as  affected  by 
the  pleadings. 

64.  In  reference  to  the  arguments. 

65.  Miscellaneous. 

67.  Questions  of  law  and  fact. 
69.  Undisputed  facts ;  questions 
of  law. 


72.  "Weight  of  evidence,  etc.,  for 
the  jury. 

73.  Law  and  fact  in  criminal 
cases. 

77.  Absence  of  evidence ;  ques- 
tion of  law  ;  nonsuit. 

79.  Construction  of  written  and 
oral  contracts ;  wills ;  policies ; 
leases. 

84.  Legality  of  contracts. 

85.  Records. 

86.  Contracts  and  writings,  when 
questions  of  fact,  or  mixed  questions 
of  law  and  fact ;  technical  terms  ; 
lost  instruments ;  patents. 

93.  Usage. 

94.  Reasonableness. 
98.  Payment. 

101.  Limitation. 

102.  Usury. 

103.  Notes,  &c. 

104.  Miscellaneous  contracts. 
107.  Notice. 

107rt.  Questions  relating  to  land. 

116.  Delivery. 

117.  State  of  mind  ;  intention ; 
identity. 

120.  Miscellaneous. 

121.  Partnership;  agency;  sale. 

122.  Mixed  questions ;  miscella- 
neous. 

126.  Fraud. 

131.  Malice. 

132.  Libel,  &c. 

133.  Malicious  prosecution. 

134.  Negligence,  i&c. 
136&.  Nuisance. 
136c.  Cruelty. 

137.  Waiver. 

139.  Credit  of  witness,  &c.,  and 
other  points  relating  to  testimony ; 
weight  of  evidence  ;  comparative 
weight  of  ditfereut  kinds  of  evi- 
dence. 

156.  Communications  of  the 
judge  to  the  jury  out  of  the  regu- 
lar course;  time  of  objecting  to 
instructions. 


254  THE    LAW    OF    NEW    TRIALS.  [CII.  XI. 

164.  Instructions  as  to  costs  and  I      1G7.   Prayer  or  request   for  in- 
(lamasres.  slructions. 


§  1.  A  NEW  trial  will  be  granted  for  misdirection  of  the 
judge  in  matters  of  law  material  to  the  issue ;'  if  the  ver- 
dict conform  to  the  charge  ;^(a)  though  no  instructions 
"were  asked.^ 

'  Baker  v.  Ezzard,   Geo.  Dccis.  Thomas,  14   Tex.  583 ;   Sadler   n. 

Part   II.   112;  IG  111.   495;    Craft  Sadler,    16   Ark.    628;    Planter's, 

V.  Jackson,    4   Geo.  360;  6  Mod.  &c.  «.  Richardson,    15  Geo.  277; 

242  ;  3   Salk.   64!).     See   Oliver  v.  Feanjan  v.  Cureton,  19  Geo.  404. 

Chapman,   15  Tex.  400;    Keasoner  2  Keller  v.  Dillon,  26  Geo.  701. 

V.  Brown,  19  Ark.  234  ;  McDaniel  »  Garrett  v.   Gonter,   42    Penn. 

V.  Crosby,  19  Ark.  533  ;  Earle  v.  143. 

(a)  "  We  have  looked  with  some  attention  into  the  books. — We  have 
not  been  able  to  find  a  single  case"  (where  a  new  trial  was  refused  for 
misdirection).  Per  Parsons,  C.  J.,  Boyden  v.  Moore,  5  Mass.  365. 
"  There  is  not  a  single  instance  where  a  new  trial  has  been  refused  in  a 
case  where  the  verdict  has  proceeded  on  the  mistake  of  the  judge."  Per 
Ld.  Kenyon,  Wilson  v.  Eastall,  4  T.  R.  7.53.  "  The  importance  of  the 
rule" — that  an  omission  or  refusal  to  answer  a  relevant  and  material 
point  is  error — "  cannot  be  overestimated,  when  we  regard  our  short  and 
simple  pleading,  which  rarely  brings  the  law  of  the  case  on  the  record. 
The  only  method  in  most  cases  a  party  has  left  to  bring  before  the  court, 
and  from  thence  to  this  court  for  review,  a  proposition  of  law,  is  by  pre- 
senting it  as  a  point  to  be  charged  upon,  and  when  clearly  responded  to 
it  greatly  aids  the  jury ;  or,  if  distinctly  negatived,  the  party  has  no 
trouble  in  having  it  reviewed. — The  qualification  of  the  rule  excludes,  of 
course,  abstract  propositions,  or  such  as,  if  answered  as  prayed  for, 
would  not  have  benefited  the  party."  Per  Thompson,  J.,  Tlie  Pennsyl- 
vania, (fee.  V.  Zebe,  33  Penu.  323.  And  the  rule  is  held  to  apply  even 
to  a  penal  action.  Wilson  v.  Rastall,  4  T.  R.  753.  In  reference  to  this 
class  of  cases  the  court  remarked,  "  The  application  for  a  new  trial  is  a 
direct  appeal  to  the  justice  and  laws  of  the  country,  and  cannot  be  tried 
and  disposed  of  by  any  other  rule."  Per  Ld.  Kenyon,  Calcraft  v.  Gibbs, 
5  T.  R.  19.  It  is  sometimes  held,  that  the  correctness  of  the  action  of 
the  court  below,  in  giving  or  refusing  instructions,  will  be  examined  by 
the  Supreme  Court,  though  not  made  a  ground  of  error  in  the  motion 
for  a  new  trial.  Fine  v.  Rogers,  15  Mis.  315;  and  that  when  it  is  evi- 
dent, from  all  the  facts  attending  a  case,  that  by  the  ruling  of  the  court, 
a  party  was  deprived  of  any  right,  though  in  strictness  the  ruling  may 
have  been  correct,  yet,  if  the  default  of  the  party  was  not  inexcusable, 


en.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  255 

§  2.  And  any  decision  or  declaration  by  the  court,  upon 
the  law  of  the  case,  made  in  the  progress  of  the  cause, 
and  by  which  the  jury  are  influenced  and  the  counsel  con- 
trolled, is  considered  within  the  scope  and  meaning  of  the 
term  "  instructions."'  "Where  there  is  so  much  evidence 
as  to  allow  the  case  to  go  to  the  jury,  the  party  is  entitled 
to  have  correct  instructions  given.- 

§  3.  But  a  motion  to  set  aside  a  default  does  not  come 
within  the  provisions  of  a  statute,  authorizing  exceptions 
to  decisions  of  courts  overruling  motions  in  arrest  of 
judgment,  for  new  trials,  and  continuances.^  So  a  statute 
allowed  bills  of  exceptions  and  appeals,  founded  on  matter 
of  law  apparent  on  the  face  of  the  record,  excepting  judg- 
ments founded  on  pleas  in  abatement.  In  this  case  the 
plea  objected  to  the  service  of  the  writ  by  a  coroner,  and 
the  issue  was  upon  the  interest  of  the  sheriff  in  the  case. 
Exceptions  to  the  ruling  of  the  judge  were  held  not  to 
lie,  although  an  issue  in  fact  was  joined  and  tried,  and 
although  they  should  be  held  to  embrace  both  fact  and 
law.* 

§  3a.  Although  the  court  above  will  not  interfere  with 
verdicts  on  the  ground  that  they  are  against  the  weight 
of  evidence,  yet,  in  severe  cases,  it  must  be  satisfied  that 
the  instructions  given  for  the  party  obtaining  a  verdict 
are  entirely  unexceptionable,  or  a  new  trial  will  be 
granted.' 

'  Sowerwein  v.  Jones,  7  Gill  &  '  Wallace  v.  Jcrone,  1  Scam.  524. 
Johns.  335.  *  Sawyer  v.  Pratt,  9  Met.  170. 

2  Gilkey  v.  Peeler,  23  Tex.  663  ;        s  Carroll  v.  Paul,  IG  Mis.  220. 
Ridens   i'.   Ridens,   29    Mis.    470  ; 
Smith  V.  Johnson,  13  Ind.  224. 

and  he  presents  a  prima  facte  case  of  merits,  he  ought  to  be  allowed  a 
rehearing.  Chambers  v.  Fisk,  15  Tex.  335.  In  New  York,  on  motion 
for  a  new  trial  upon  a  case  stated,  for  the  misdirection  of  the  judge  in 
his  charge,  it  is  not  necessary  that  it  should  have  been  excepted  to. 
Otherwise  on  a  bill  of  exceptions  to  the  rule.  Geer  v.  Archer,  2  Barb. 
420. 


256  THE    LAW    OF   NEW    TRIALS.  [CH.  XI. 

§  4.  More  especially  where  the  preponderance  of  evi- 
dence is  doubtful,  if  the  law  is  not  properly  given  by  the 
court,  a  new  trial  will  be  granted.^ 

§  5.  It  is  sometimes  held  that  a  new  trial  will  not  be 
granted  for  the  omission  of  a  particular  charge,  unless 
requested.^  Or  of  one  view  of  the  evidence,  unless  injury 
results.^  Or  an  omission  to  charge  upon  any  points  of  law 
arising  in  the  case,  unless  desired.^  Thus,  a  judge  is 
under  no  obligation  to  make  known  liis  views  of  the  rela- 
tive condition  of  the  parties,  as  to  the  burden  of  proof,  at 
every  stage  of  the  proceedings;  if  he  gives  the  right 
direction  to  the  cause  when  a  party  has  announced  that 
his  case  is  complete.'  JSTor  to  give  an  instruction  which 
has  already  been  given  by  an  instruction  in  chief."  More 
especially  where  no  instructions  are  asked,  the  court  above 
will  not  interfere  with  verdicts  found  according  to  the 
evidence.^  The  distinction  is  made,  that  by  an  improper 
instruction  the  jury  is  deceived ;  while  by  a  mere  omission 
to  give  a  proper  one  they  are  merely  left  unembarrassed, 
to  decide  the  case  upon  its  merits.^  "  Instructions  given 
by  the  court  at  the  trial  are  entitled  to  a  reasonable  in- 
terpretation ;  and  if  the  proposition  as  stated  is  correct, 
they  are  not  as  a  general  rule  to  be  regarded  as  the  sub- 
ject of  error,  on  account  of  omissions  not  pointed  out  by 
the  excepting  party. "^ 

§  6.  So  it  is  no  ground  for  a  new  trial,  that  the  charge 

'  Manier  v.  Myers,  4  B.  Mon.  Byrd,  12  ib.  377;  Jones  v.  The 
514.  Stiite,  20  Ohio,  34  ;  Arey  v.  Ste- 

2  Ilooksett  t'.Amoskcag,  &c.  Co.,     iihenson,  12  Ircd.  34. 

44  N.  II.  105  ;  Hessing  v.  McClos-  ^  Hovey   v.  Ilobson,   44  Maine, 

key,  37  111.  341  ;  Maynard  v.  Fel-  25G. 

lows,  43  N.  II.  255  ;  Colct).  Taylor,  ^  Russ  v.  War  Eagle,  14  Iowa, 

2  N  J  59  SG3 

3  Page  v.  Kinsman,  43  N.  II.  328.  ?  "Penn  v.  Lewis,  12  Mis.  IGl. 

4  Carter  v.  Bennett,  4  Flori.  283;  «  Breckenridge  v.  Anderson,  3 
Averett  v.  Brady,  20  Geo.  523  ;  J.  J.  Mar.  710  ;  Hice  v.  Woodard, 
AYood  V.  Figard,   28   Penn.  403  ;  12  Ired.  293. 

Ward  V.  Herrin,  4  Jones,  23  ;  State        ^  Per  Clilford,  J.,  Castle  v.  Bul- 
V.  Rash,    12  Ired.   382  ;  Briggs  v.     lard,  23  How.  189. 


en.  XI.]        ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  257 

of  the  judge,  which  was  right  so  far  as  it  went,  did  not 
go  far  enough.*  So  the  mere  omission  to  charge  on  a 
particular  point  is  not,  in  general,  a  ground  of  new  trial; 
and  more  especially,  where  the  omission  is  on  points  of 
law  neither  doubtful  nor  abstruse,  the  jury  will  be  pre- 
sumed to  have  followed  the  law.^  Nor,  where  the  gene- 
ral principle  applicable  to  the  case  laid  down  in  the  charge 
is  correct,  will  a  new  trial  be  granted  for  the  want  of  a 
more  particular  direction,  unless  it  was  asked.^  So  where 
testimony  was  given  as  to  the  character  of  the  accused, 
■which  was  proved  to  be  good  ;  and  the  judge  inadvertently 
omitted  to  say  anything  on  this  topic*  So  where  the 
jury  were  told,  upon  an  appeal  from  the  award  of  land 
damages  by  railroad  commissioners,  that  the  law  in  rela- 
tion to  highways  applied  generally  to  railroads  ;  and  the 
court  were  not  at  the  time  asked  to  make  the  instructions 
more  definite.'  So,  in  a  case  of  murder,  the  trial  closed 
at  about  midnight  of  Saturday.  No  points  of  law  were 
disputed.  The  defendant's  counsel  requested  a  charge, 
but  the  judge  submitted  the  case  without  remark.  The 
verdict  of  conviction  was  fully  supported  by  the  evidence, 
and  the  court  refused  to  set  it  aside.^  So,  where  a  request 
to  charge  is  an  entire  proposition,  made  in  reference  to 
"the  right  to  recover,  and  not  to  damages,  and  is  properly 
denied ;  it  is  not  error  to  omit  to  single  out  a  particular 
part  of  it  and  apply  it  upon  the  question  of  damages.'' 

§  7.  But  the  general  rule  is,  that  the  judge  not  only 
may  of  his  own  motion  instruct  the  jury,  but  is  often 
bound  to  do  so  f  that  it  is  the  duty  of  the  court  to  charge 


'  Durand  v.  Grimes,  18  Geo.  693.  e  The  People  v.  Gray,  5  Wend. 

2  Bowie  V.  State,  19  Geo.  1.  309. 

3  Selleck    v.    Turnpike    Co.,  13  ^  wiiittaker  i).  Perry,  38  Vt.  107. 
Conn.  453.  «  Stumps  v.  Kelley,  22  111.  140  ; 

*  State  V.  Smith,  10  Rich.  Law,  Inloes  v.  American,  etc.,  11    Md. 

341.  173  ;  Welch  v.  Watts,  9  Ind.  115. 

s  March  v.  Portsmouth,  &c.,  19 
N.  H.  372. 

17 


258  THE    LAW    OF    NEW    TRIALS.  [CIL  XI. 

the  jury  as  to  tlic  law,'  and,  where  only  part  of  the  law  of 
the  case  is  given  in  the  charge,  it  is  ground  for  a  new 
trial.2     Thus,  where  the  court  instructs  the  jury  upon 
what  state  of  facts  they  must  find  a  verdict  for  a  party, 
the  instruction  should  include  all  the  facts  in  controversy, 
material  to  the  right  of  the  plaintiif  or  the  defence.^     So 
it  is  the  duty  of  a  judge  to  give  such  instructions  as  en- 
able the  jury  to  have  clear  and  intelligent  notions  of  what 
they  are  to  decide.   If  the  omission  does  injustice,  the 
judgment  will  be  reversed,  although  counsel  did  not  ask 
for  any  instructions.''     So  the  court  should  specifically  in- 
struct the  jury,  what  facts  are  denied  and  what  admitted 
on  the  pleadings,  and  what  facts  are  material.     Therefore 
it  is  error  to  charge  the  jury,  that  all  material  facts  alleged 
and  not  denied  must  be  received  as  true  by  the  jury.'' 
Thus  where  a  private  individual,  having  removed  certain 
fish-traps  as  a  public  nuisance,  was  sued  in  trespass,  and 
found  guilty  ;  a  new  trial  was  granted,  because  a  certain 
clause  in  a  local  act,  pertinent  to  the  question  involved, 
was  overlooked  by  the  court.^     So  when  jurors  are  in- 
structed to  find  a  verdict  for  the  plaintifi',  if  the  evidence 
in  the  case  proves  either  of  two  facts,  one  of  which  is  not 
legally  provable  by  the  evidence ;  a  verdict  for  the  plain- 
tiff will  be  set  aside.     As  where  parol  evidence  was  ad- 
mitted to  prove  fraud  in  a  written  agreement,  and  the 
judge  charged  that  "if  it  was  agreed,  when  tlic  deed  of 
quitclaim  and  writing  were  made,  that  the  notes  should 
be  thereby  paid,  then  the  mortgages  ceased  to  have  any 
leo-al  effect."''     So  where  the  attention  of  the  jury  is  con- 
fined to  one  view  of  a  case,  when  there  are  others  which 
they  ought  to  consider.'     As  where  one  ground  of  defence 

"Todd  v.   Campbell,  82    Ponn.  s  Tipton  ?).  Triplctt,  1  Met.  (Ky.) 

250  •  Pcnnsvlvania,  <kc.  v.  Zebc,  3o  570. 

Penn  318.  '  ^  Tarrar  v.  Nunamaker,  5  liich. 

2  Keener  v.  State,  18  Geo.  194.  484. 

3  Galla-dier    v.   Williamson,    23  '  Leonard  i).  Smith,  11  Met.  330. 
Cal.  331.  °  ^  Garrett «.  Gonter,  43  Penn.  143. 

*  Owen  V.  Owen,  22  Iowa,  270. 


CH.  XL]         ERROI^EOUS   RULINGS    OR   INSTRUCTIONS.  259 

was  that  a  letter  of  attorne}'  had  been  forged,  hut  the 
point  was  also  raised,  that  the  mortgage  in  question  had 
been  ratified  and  adopted  by  the  defendant,  and  that  she 
was  estopped  to  dispute  it,  and  there  was  some  evidence 
of  her  assenting  to  it;  but  the  jury  were  told,  that  the 
sole  question  was,  whether  the  letter  was  forged.'  So, 
where  the  commissioner  of  special  bail  had  allowed  the 
applicant  for  the  prison-bounds  act  to  amend  his  schedule, 
but  at  the  trial  he  failed  to  explain  the  matter  and  the 
effect  of  the  amendment  to  the  jury;  a  new  trial  was 
granted,  the  verdict  being  against  the  applicant.^  So,  in 
an  action  to  recover  for  land  taken  for  a  plank-road,  in 
answer  to  the  plaintiff's  questions,  his  witnesses  stated  as 
damages  a  general  sum,  which  appeared,  upon  cross-ex- 
amination or  otherwise,  to  have  included  consequences  of 
the  appropriation  too  remote  to  be  considered.  Held, the 
duty  of  the  court,  especially  upon  objection  made,  to  in- 
struct the  jury  that  this  estimate  should  not  be  regarded.^ 

§  8.  And  in  a  late  case  it  is  said:  "The  parties  were 
entitled  to  the  judge's  opinion,  to  his  best  judgment,  on 
every  question  of  law  arising  in  the  course  of  the  trial."* 
Thus,  in  an  action  of  trespass  qu.  daus.j  where  the  de- 
fendant justified  under  a  claim  of  right,  asserted  without 
unnecessary  force,  after  an  examination  in  part  of  one 
witness  for  the  plaintiff,  the  court  suggested  that  the 
counsel  for  the  plaintiff  should  confine  himself  to  such 
facts  as  were  necessary  to  maintain  the  case,  independent 
of  damages.  The  bill  of  exceptions  recited  all  the  evi- 
dence, and  concluded  as  follows :  "Upon  this  evidence,  the 
presiding  judge  ruled,  pro /onna,  that,  not  considering  the 
question  of  damages,  the  plaintiff  could  not  maintain  his 
action,  and  thereupon  a  pro  forma  verdict  was  taken  for 

1  Garrett  ?).  Gonter,  42  Penn.  143.        *  Per  Shaw,  C.  J.,  Goddard  v. 

2  Wiley  V.  Smith,  8  Kich.  389.         Perkins,  9  Gray,  412. 
'  Satcr    V.    Burlington,    »&c.,    1 

Clarke,  28G. 


2G0  THE   LAW    OF    NEW    TRIALS.  [CII.  XI. 

the  defendants."  ITcld,  tlie  final  ruling  of  the  judge  was 
entirely  irregular,  and,  as  the  plaintiff  was  unwilling  to 
let  his  whole  case  depend  upon  the  main  question  of  right, 
the  exceptions  were  vacated  and  the  case  remanded  for  a 
full  trial.'(«) 

§  9.  It  is  the  prevailing  rule,  that  a  mere  abstract  or 
theoretical  error  in  the  rulings  or  instructions  of  the  pre- 
siding judge,  or  the  refusal  of  them,  furnishes  no  ground 
of  new  trial ;  and  this  whether  the  error  consisted  in  a 
mere  omission,  or  in  positive  misdirection.  With  the 
qualification,  however,  that  such  error  clearly  had  no 
tendency  to  mislead  the  jury  or  affect  the  issue.  And  the 
rule  is  adopted  in  applications  for  a  new  trial  made  to  a 
higher  court.^  Thougli  the  charge  contain  an  ahstract 
legal  proposition,  having  no  direct  reference  to  the  evi- 
dence, yet,  although  the  language  he  general,  it  will  be 
presumed  the  jury  made  a  })roper  a})plicati()n  of  it.^ 
"Error  in  stating  an  ahstract  principle  not  arising  out  of 
the  evidence,  and  nowise  relating  to  the  cause,  shall  not 
be  taken  advantage  of  by  either  party  ;  for  it  would  be 

>  Goddard   v.  Perkins,  9   Gray,  shear,  SFlori.  Ifil ;  TTolden  ».  Blox- 

411.  iim,  B5  Miss.  381  ;  Wood  v.  Gibhs, 

2  Patterson  v.  People,  4G  r>arb.  85  Miss.   500  ;    Smith   v.  ('arr,  16 

625 ;    IMitchcll    v.   Ciiurchman,    4  Conn.   450 ;    Moflitt   v.  Crcsslcr,  8 

Hiunpli.  21S;  Williams  v.  VVilliiims,  Clarke,  122  ;  ISoyd  v.  State,  17  (Jeo. 

34  Pcnn.  312;  McGreu;or  y.  Armill,  1!)4;  Taylor  v.  Morrison,  20  Ala. 

2  Clarke,  30  ;  Cresinger  v.  Welcli,  728. 

15  Ohio,  156;  Eyser  «.  Weissgcr-  ^  Tlio    People    v.    Reynolds,    3 

ber,  2  Clarke,  403  ;  Western,  A'C.  Mich.  423. 
V.  AValker,  ib.  504;  Milton  v.  Black- 

(a)  It  is  the  duty  of  a  judge  to  group  the  evidence  and  to  indicate 
the  bearing  of  its  several  parts  upon  the  issue.  Commissioners  v.  Clark, 
33  N.  Y.  251.  A  new  trial  will  bo  granted,  when  a  case  is  subn»itted  to 
the  jury  without  any  instruction  upon  the  main  point  in  it,  by  an  unin- 
tentional omission  of  the  judge  and  an  unintentional  omission  of  the  counsel 
to  correct.  Adair  v.  Adair,  30  Geo.  102.  It  is  not  proper  for  a  judge 
to  lay  down  the  general  principles  applicable  to  a  case  and  leave  the  jury 
to  apply  them,  but  to  inform  the  jury  what  the  law  is  as  applicable  to 
the  facts.     Morris  v.  Piatt,  32  Conn.  75. 


Cir.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  261 

impossible  for  sucli  an  error  to  have  an  efTcct  on  the  event 
of  the  cause."^  An  instruction  is  right,  if  correct  in  its 
application  to  the  evidence,  and  not  likely  to  mislead  the 
jury,  though  wrong  as  an  abstract  ])roposition.^  Or,  even 
in  a  capital  trial,  if  it  had  clearly  no  bearing  on  the  cage.^ 

§  10.  It  is  not  error  to  refuse  an  instruction  which  is 
unobjectionable  as  an  abstract  proposition,  when  it  does 
not  fully  state  the  rule  by  which  the  jury  are  to  be 
governed  with  reference  to  the  facts,^  or  has  no  relevancy 
to  the  issue.'  A  judge  is  not  bound  to  instruct  the  jury 
upon  an  abstract  proposition.  lie  is  to  lay  down  the  law 
as  applicable  to  the  evidence.^  As  where  a  confession  is 
corroborated  by  other  evidence,  and  the  court  refuse  to 
charge  that  such  confession  alone  would  not  authorize 
conviction.^(a) 

§  11.  It  is  no  ground  of  new  trial,  that  the  judge  gave 
a  wrong  reason  for  a  correct  instruction.^ 

§  12.  The  general  rule  on  this  subject  is  a  fortiori  appli- 
cable, where  the  verdict  is  in  accordance  with  the  proof, 
and  a  new  trial  upon  the  same  proof  would  produce  a  like 
result.'    (See  chap.  3.)     Or  if  the  verdict  is  according  to 


'  Per  Gibson,  J.,  Deal  v.  McOor-  Iowa,  509;  IToM  v.  Grimes,  13  B. 

mick,  a  S.  &  11.  34.").  Mon.  IBS;  Browning  v.  State,  30 

2  Roots  V.  Tyner,  10  Ind.  87.  Miss.  G-IG. 

»  People  V.  Robinson,  2  Parker,  ^  ]\litchell  v.  Western,  &c.  R.  R. 

285.  Co.,  30  Geo.  22. 

*  Dwycr  v.  Dunbar,  5  Wall.  318;  «  The  State  v.  Rash,  12  Ired.  382; 

Allen  V.   Wanamaker,   2    Vroom,  Ford  v.  Ford,  11  Humph.  89  ;  State 

370;  Knox  v.  Easton,  38  Ala.  345  ;  v.  Presnell,  12  Ired.  103. 

Hcssing  V.  McCloskey,  37  111.  341  ;  '  Com.  v.  Tarr,  4  Allen,  315. 

JIurphy  V.  People,  ib.  447;  Secor  ^  Munro  v.  Potter,  34  Barb.  358. 

T.  Pestana,  ib.  525  ;  Hunt®.  Crane,  ^  Simpson  v.  Bowdon,  23  Miss. 

33  Miss.  GCy  ;  Hypfncr  v.  Walsh,  3  524. 

(a)  Erroneous  instructions,  upon  questions  not  passed  upon  in   the 
verdict,  are  no  cause  for  setting  it  aside.  Hovey  v.  Chase,  52  Maine,  304, 


262  THE    LAW    OP    NEW    TRIALS.  [ciI.  XI. 

law,  though  contrary  to  the  instructions.'  Thus  where 
payment  was  pleaded  among  other  pleas,  and  all  the  issues 
were  found  for  the  defendant;  the  court,  on  appeal,  would 
not  review  the  decisions  of  the  court  below  as  to  the 
other  pleas.^  So  a  company,  consisting  of  a  large  number 
of  persons  subscribing  small  sums,  was  formed  for  the 
purpose  of  buying  land,  erecting  dwellings  thereon,  and 
allotting  them  to  the  sul)scribers.  The  allotment  depended 
upon  the  result  of  a  ballot.  In  connection  with  this  com- 
pany there  was  established  a  bank,  for  receiving  the 
deposits  of  small  capitalists  and  workingmen,  upon  the 
security  of  the  property  of  the  company ;  and,  as  part  of 
the  same  concern,  a  bank  in  which  the  subscribers  of  the 
company  might  place  their  savings  for  purchasing  their 
land  from  the  company.  The  judge,  in  an  action  of  libel, 
having  directed  the  jury  that  the  whole  of  this  scheme 
was  illegal,  on  the  grounds  of  its  being  contrary  to  the 
lottery  acts,  and  also  to  the  bank  act :  held,  the  scheme 
being  illegal  as  contrary  to  the  bank  act,  there  was  no 
misdirection,  even  though  not  contrary  to  the  lottery  act; 
and  therefore  a  new  trial  was  refused.* 

§  13.  Where  a  judge,  in  summing  up  to  the  jury,  mis- 
takes the  law  upon  a  collateral  point,  upon  which  a  bill 
of  exceptions  would  not  lie,  a  new  trial  will  not  be  granted 
as  of  right,  but  the  court  will  exercise  its  discretion,  ac- 
cording to  its  opinion  of  the  result  being  in  accordance 
with  the  justice  of  the  case.* 

§  13a.  There  are  cases,  however,  in  which  a  more  strin- 
gent rule  has  been  adopted  in  regard  to  the  effect  of  erro- 
neous rulings,  even  though  abstract  and  theoretical.^     It 

'  Pratte,  12  Mis.  194.  ^  Dunlap  v.  Eobinson,  28  Ala. 

2  Hall  y.  Woodsiae,  8  Ired.  110.  100;    Coii-liliu  «.  The   People,  18 

3  O'Connor  z).  Bradshaw,  1  Eng.  111.  200;  Mayes  v.  Farish,  11  B. 
L.  and  Eq.  4fifi.  Mon.  P>S  ;  Monto:omery  v.  Evans,  8 

*  Blacks.  Joucs,3  Eng.  L.  and  Geo.  178;  Stearal)oat,  &c.  «.  Buck- 
Eq.  559.  ner,  13  B.  Mou.  240. 


en.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  263 

is  held  tliat,  if  tlic  judge  give  instructions  to  the  jury, 
whicli,  though  true  as  uhstract  propositions,  are  erroneous 
when  ajiplied  to  the  evidence,  and  may  have  a  tendency 
to  mislead  them,  the  verdict  will  be  set  asidc.^  That  an 
irrelevant  instruction  is  error,  for  which  a  new  trial  will 
be  granted,  unless  it  is  manifest  that  the  jury  could 
not  have  been  misled  by  it.^  And,  more  especially,  that 
a  new  trial  will  be  granted  where  the  facts  may  have 
warranted  the  jury  in  finding  as  they  did,  but  where  the 
court  erred  in  its  instructions  upon  the  point  in  issue.^  So 
when  the  court  charges  the  jury  on  an  assumed  state  of 
facts,  not  proved.* 

§  14.  And  the  qualified  rule  is  laid  down,  that  a  new 
trial  will  not  be  granted  for  matters  suggested  in  a  charge 
not  pertinent  to  the  case,  unless  the  attention  of  the  judge 
is  called  to  them  and  he  refuses  to  explain.^ 

§  15.  A  verdict  will  not  be  set  aside  on  account  of 
amhiguitu  in  the  instructions  of  the  court,  if  it  is  apparent 
that  the  jury  were  not  misled  by  it.^  And  it  will  be  pre- 
sumed that  the  jury  were  not  misled  by  a  proposition 
contained  in  the  instructions,  which,  when  considered  by 
itself,  is  susceptible  of  a  construction  that  would  render 
it  erroneous,  if,  when  considered  in  connection  with  the 
other  parts  of  the  charge,  and  in  reference  to  the  subject- 
matter  to  which  it  was  understood  by  the  jury  to  relate, 
there  could  be  no  doubt  that  another  meaning  w^as  in- 
tended, wdiich  would  render  it  correct.'' 

§  16.  In  a  late  case  it  is  said:  "The  jury  are  presumed 
to  understand  the  definition  of  words  in  common  and 


'  Hopkins  v.  Fowler,  39  Maine,  100  ;  Armistead  v.  Brooke,   18  ib. 

568.  521  ;  Hanc}^  v.  Marshall,  9  Md.  194. 

2  Wriiilit  P.  Clark,  84  Miss.  116.  s  Gardner  v.  Pickett,  19  Wend. 

3  Field  ».  Dealety,  10  B.  Mon.  4.  186. 

*  Harrison  ».  Thompson,  9  Geo.  ^  Wendell  v.  Moulton,  6  Fost.  41. 

310  ;  Dunlap  v.  llobinsou,  28  Ala.  ^  Iloitt  v.   Holcomb,    32   N.  H. 

185. 


264  THE    LAAV    OF   NEW    TRIALS.  [cil.  XI. 

ordinary  use,  and  are  not  in  attendance  for  the  purpose  of 
being  instructed  in  that  particular. — If  the  judge  had 
defined  the  word  '  unfaithfuhiess,'  he  might  have  been 
called  upon  to  define  the  words  of  his  own  definition, 
and  so  have  proceeded  ad  infinitum^  or  until  his  vocabu- 
lary had  become  exhausted."^  And  if  instructions  of 
doubtful  interpretation  are  thought  too  indefinite,  the 
party  should,  when  they  are  given,  ask  to  have  them 
made  more  definite.^ 

§  17.  If,  from  the  answers  given  by  the  judge  to  an  in- 
quiry of  the  jury,  a  party  is  apprehensive  that  the  jury 
may  be  led  to  an  erroneous  supposition,  he  should  suggest 
it  to  the  judge,  and  not  except  merely  in  general  terms  to 
an  instruction  which  is  correct  in  fact.^ 

§  18.  A  new  trial  will  not  necessarily  be  granted,  for 
conflict  between  general  instructions  and  those  asked  for.'* 

§  19.  It  is  to  be  presumed  that  jurors  understand  the 
instructions  of  the  court  in  matters  of  law;  and,  where 
proper  instructions  are  given,  a  new  trial  will  not  be 
granted,  on  the  suggestion  that  they  did  not  rightly  un- 
derstand them. 

§  20.  Thus,  where  the  plaintiff  called  for  the  books  of 
the  defendants,  which  were  produced,  and  contained  both 
charges  and  credits;  the  jury  were  instructed,  that  the 
plaintiff,  by  calling  for  the  books,  and  claiming  the  bene- 
fit of  the  credits,  had  made  the  books  prima  facie  evidence 
only,  and  that  it  was  open  to  him  to  contend,  upon  the 
whole  evidence,  that  the  items  on  the  debit  side  were  not 


'  Per  Cutting,  J.,  Borry  v.  Bill-  Ala.  641;  Miller?).  Bryan,  3  Clarke, 

ings,  47  Maine,  321) ;  Raymond  v.  58. 

Nye,  5  Met.  151.  ^  Stroud  v.  Frith,  11  Barl).  300. 

2  Castle    V.   Bullard,    23    How.  *  Eyser ».  Weissgerber,  2  Clarke, 

(U.S.)  173;    Tuey  v.  Owens,    28  463. 


en.  XI.]        ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  265 

proved,  or  were  not  proper  subjects  of  charge.^  It  was 
held  no  ground  for  a  new  trial,  that  the  jury  might  have 
understood  that  this  ruling  required  the  defendants  to 
prove  the  correctness  of  their  charges  against  the  plain- 
tiff, and  not  that  the  burden  was  shifted  upon  the  plain- 
tiff to  disprove  them,  after  he  had  made  a  prima  facie  case 
against  himself,  as  to  those  charges,  by  introducing  the 
books.2  j^,^(j  it  is  held  that  misunderstanding,  or  want 
of  recollection,  of  the  judge's  instructions,  if  it  could  be 
proved,  would  not  be  sufficient  cause  for  setting  aside  a 
verdict.^ 

§  21.  For  a  judge  to  charge  "I  apprehend  the  law  to 
be,"  amounts  to  "  I  conceive,  or  I  think,"  and  is  not  ob- 
jectionable." And  the  charge  must  be  understood  as 
having  had  an  especial  and  direct  reference  to  the  issue 
and  the  evidence  respecting  it.  The  words  employed 
must  be  taken  in  their  ordinary  and  popular  acceptation.' 

§  22.  But  it  is  sufficient  objection  to  a  charge,  that  it 
might  convey  to  the  mind  of  any  man  of  ordinary  capa- 
city an  incorrect  view  of  the  law  applicable  to  the  cause.^ 
And  where  a  charge  was  for  the  defendant,  "  if  there  were 
testimony  rebutting  the  plaintiff's  proof;"  held,  the  jury 
might  understand  "  rebutting "  to  mean  only  contradic- 
tory, and  not  overcoming  testimony,  in  which  case  the 
charge  was  wrong,  and  therefore  a  new  trial  was  ordered.^ 
So  an  instruction  expressing  different,  confusing,  and 
inconsistent  views  of  the  same  matter  is  erroneous.'  Or 
a  charge  generally  involved,  confused,  and  obscure.^     Or 

«  Raymond  v.  Nye,  5  j\ret.  151.        s  Sumner  v.  The  State,  5  Blackf. 

See  People  v.  Bagnell,  31  Cal.  409.  579. 

2  5  j\I('t.  lol.  ''  Fain  v.  Cornett,  35  Geo.  184. 

3  Ilannum  v.  Belchertown,  19  «  Wood  v.  Steamboat,  &c.,  19 
Pick.  ;n.  Mis.  529. 

<  Golden  V.  State,  25  Geo.  527.  ^  Armistoad  v.  Brooke,  18  Ark. 

5  Mitchell  V.  Zimmerman,  4  Tex.     521  ;   BouUemet  v.  State,  28  Ala. 

75  83;  Ferguson  v.  Fox,  1  Met.  (Ky.) 

83. 


266  THE   LAW    OF   NEW    TRIALS.  [CII.  XL 

instructions  given  as  requested,  but  connected  with  others 
contradictory,  or  whicli,  in  connection  with  the  former, 
would  give  a  wrong  view  of  the  law.^  So  a  new  trial 
was  granted  on  account  of  the  instruction,  that  the  bur- 
den of  proof  was  upon  the  plaintiff,  and  was  sustained 
"if  upon  the  whole  proof  there  was  a  preponderance  of 
evidence,  that  is  to  say,  a  balance  of  the  probabilities  of 
the  case,  in  his  favor."  "The  phrase  'balance  of  proba- 
bilities' has  no  well-settled  or  clearly-defined  meaning.  It 
would  rather  lead  the  jury  to  infer  that  they  might  form 
their  verdict  on  a  guess  at  the  truth,  gathered  from  the 
evidence,  than  on  a  real  solid  conviction  of  it,  founded  on 
a  careful  scrutiny  and  examination  of  the  proof. "^ 

§  23.  If  a  judge  charges  suhstaiitlally  according  to  law, 
though  not  in  the  terms  requested,  it  is  sufficient.^(a)    All 

•  Clark  V.  McElvy,  11  Cal.  154.  440  ;   State  v.  Wissmark,  30  Mis. 

2  Haskins  v.  Haskius,  9    Gniy,  593;  State  ®.  Rorabacher,  19  Iowa, 

300,  393,  per  Bigelow,  J.  (in  sub-  154;    State  v.  Schla.ccel,    ib.    1G9  ; 

stance).  Dodge  v.  Rogers,  9  Miii.  223. 

"  State  1}.  Shaw,  4  Jones,  Law, 


(a)  Garsed  v.  Turner,  Error  to  the  District  Court  of  Philadelphia. 
Opinion  by  Williams,  J,  March  4th,  1872.  The  principal  question  in 
this  case  relates  to  the  proper  measure  of  damages  for  the  breach  of  the 
alleged  contract.  The  District  Court  instructed  the  jury,  that,  "  if  the 
contract  was  broken  by  the  defendants,  the  plaintiff  is  entitled  to  be  put 
in  the  same  position,  pecuniarily,  as  he  would  have  been  if  the  contract  had 
been  kept,  regard  being  had  to  the  fact  that  the  plaintiff  soon  afterwards 
obtained  other  employment."  This  instruction  is  complained  of  as  erro- 
neous, because,  as  contended,  it  furnished  no  proper  rule  by  which  to 
measure  the  damages,  being  but  a  general  statement  of  the  result  to  be 
arrived  at,  without  any  teaching  as  to  how  that  result  was  to  be  attained. 
Where  there  is  no  prayer  for  instructions,  the  court  cannot  be  convicted  of 
error  except  for  positive  misdirection,  though  the  instructions  are  not  as 
full  and  specific  as  they  might  have  been.  Mere  omission  to  charge,  as  we 
have  often  said,  does  not  amount  to  misdirection,  and  where  the  proper  rule 
has  been  laid  down  for  the  guidance  of  the  jury,  the  omission  of  specific 
instructions  to  aid  them  in  its  application  cannot  be  regarded  or  assigned 
as  error.  As  no  instructions  were  requested  in  this  case,  the  only  question 
is,  whether  the  court  was  guilty  of  misdirection  in  instructing  the  jury 


en.  XL]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  267 

the  instructioiw  and  cx:[)liination3  are  to  be  considered  to- 
gether, to  see  whether  tliey  must  on  the  whole  have  conveyed 
a  correct  idea  to  the  jury,  though  some  of  them  may  have 


that  the  phiintiff  was  entitled  to  be  put  in  the  same  position,  pecuniarily, 
as  he  would  have  been  if  the  contract  had  been  kept.  This  was  but  an- 
other mode  of  saying  that  the  plaintiff  was  entitled  to  recover  what  he 
would  have  made  directly  out  of  the  contract  if  it  had  been  fulfilled; 
and  if  so,  there  was  no  error  in  the  instruction.  Hoy  v.  Gronoble,  10 
(3asey,  9.  This  of  course  excludes  remote  or  speculative  damai^cs.  It 
was  conceded  on  the  argument  that  the  proper  measure  of  damages  for 
the  breach  of  the  contract  was  the  value  of  the  bargain.  But  what  was 
the  value  of  the  bargain,  if  it  was  not  the  profit  which  the  plaintiff  would 
have  made  immediately  out  of  the  contract  if  he  had  been  allowed  to 
perform  it  ?  If  the  damages  found  by  the  jury  would  have  put  the  plain- 
tiff in  the  same  position,  pecuniarily,  as  he  would  have  been  in  if  the  con- 
tract had  been  kept,  then  it  is  clear  that  he  recovered  the  value  of  his 
bargain,  viz.,  the  direct  profit  which  he  would  have  made  out  of  the  con- 
tract if  it  had  not  been  broken.  We  think  that  the  rule  laid  down  by 
the  court  as  the  proper  measure  of  damages  was  substantially  correct,  and 
we  cannot  say,  therefore,  that  the  jury  were  misled  by  the  terms  in  which 
it  was  expressed.  Nor  was  there  any  error  in  saying  to  the  jury  that 
"there  is  a  difficulty  in  this  case  from  the  fact  that  the  plaintiff  had 
incurred  considerable  expense  in  fitting  up  the  dye-house ;  but  still  the 
evidence  shows  that  the  defendants  were  willing  that  the  plaintiff  should 
remove  the  articles  that  he  put  there,  so  that  the  only  loss  in  regard  to 
tliese  articles  would  seem  to  be  the  loss  of  a  favorable  opportunity  of 
making  profit  by  them."  This  was  evidently  said  for  the  purpose  of  pre- 
venting the  jury  from  finding  as  damages  the  expense  incurred  by  the 
plaintiff  in  fitting  up  the  dye-house,  and  limiting  their  finding,  as  it 
respects  the  articles  which  the  plaintifi"  put  in  the  dye-house,  to  the  dam- 
ages occasioned  by  the  loss  of  a  favorable  opportunity  of  nuikiiig  profit 
by  their  use  in  performing  the  contract.  If  the  improvements  which  the 
plaintiff  made  to  the  dye-house  were  necessary  in  order  to  enable  him  to 
perform  the  contract,  then  the  loss  of  a  favorable  opportunity  of  making 
profit  by  their  use  was  a  circumstance  proper  for  the  consideration  of  the 
jury  in  determining  the  amount  of  damages  to  which  the  plaintiff  was 
entitled,  and  the  defendants  have  no  reason  to  complain  of  the  instruc- 
tion. Besides,  the  evidence  shows  that  the  expense  of  fitting  up  the 
dye-house  far  exceeded  the  value  of  the  articles  when  removed,  and  we 
see  no  reason  why  the  plaintiff  was  not  entitled  to  recover  the  difference. 
If  so,  the  instruction  was  more  favorable  than  the  defendants  had  any 
right  to  ask. 


268  THE   LAAV    OF   NEW    TRIALS.  [ciI.  XI. 

been  too  broad. '(a)  It  is  said  in  a  late  case:  "The  errors 
assigned  are  not  founded  upon  answers  to  specific  instruc- 
tions prayed  for,  but  upon  dismembered  sentences  of  the 
charge.  It  is  im})0ssible  to  conceive  of  a  more  unsatisfac- 
tory mode  of  reviewing  a  legal  opinion.  It  is  neither 
analysis  nor  criticism,  but  rude  surgery,  mere  amputa- 
tion."^  Thus  the  judge  instructed  the  jury,  that,  in  order 
to  defeat  a  mortgage,  as  made  in  fraud  of  the  insolvent 
laws,  there  must  be,  on  the  evidence,  judicial  certainty  that 
it  was  so  made,  but  immediately  explained  this  expression, 
as  meaning,  that  the  jury  were  to  be  reasonably  satisfied 

'  Castle  «.  Bnllard,  23  How.  172;    pliy  v.  People,  ib.  447 ;  Hamilton 
Childress  v.  Ford,  10  S.  &.  M.  2.5;     v.  State  Bank,  23  Iowa,  30G. 
Walker  v.  Collier,  37  111.  362;  Mur-        2  p^r  Woodward,  J..  Reeves  v. 

The  Delaware,  «fcc.,  30  Peun.  460. 

(a)  In  Illinois,  the  judge  of  the  Circuit  Court  must  reduce  his  instruc- 
tions to  writing,  and  has  no  right  to  explain  or  qualify  them  orally.  (Sts. 
18.56,  829.)  Ray  v.  Wooters,  19  111.  82.  Where  the  jury  sent  two  ques- 
tions in  writing  to  the  judge,  who  orally  instructed  them  that  the  ques- 
tions had  nothing  to  do  with  tlie  case,  and  that  it  was  their  duty  to  deter- 
mine the  case  under  the  evidence  and  instructions  already  given  ;  held, 
this  refusal  was  no  violation  of  the  statutory  requirement  that  instruc- 
tions must  be  in  writing.  Sullivan  v.  Collins,  18  Iowa,  228.  Under  the 
provision  of  the  Code  of  Alabama,  that  charges  requested  by  either  party 
in  writing,  whether  refused  or  given,  "become  a  part  of  the  record,  and 
may  be  taken  by  the  jury  with  them,  on  their  retirement,"  the  refusal  of 
the  court,  to  permit  the  jury  to  take  such  written  charges  with  tliem,  is 
erroneous.  Miller  v.  Hampton,  1  Ala.  (S.  C.)  3.57.  Where  tlie  court 
gave  charges  in  writing  to  the  jury,  as  requested,  and  told  them  that  they 
were  to  consider  the  written  in  connection  with  the  oral  charges  already 
given  as  the  law  of  the  case  ;  held,  not  erroneous.  Scott  v.  State,  1  Ala. 
(S.  C.)  23.  Erroneous  instructions  given  for  one  party  are  not  in  general 
sufficiently  corrected  by  inconsistent  exjdanatory  instructions  given  for 
the  other,  but  should  be  withdrawn.  Inihoff  v.  Chicago,  20  Wis.  344. 
In  the  absence  of  proof  that  the  defendant,  or  those  under  whom  he 
claimed,  had  paid  the  purchase-money,  it  was  error  to  give  two  instruc- 
tions, however  unexccptional)Ie  singly,  the  combined  effect  of  which  was 
to  place  him  in  the  attitude  of  an  innocent  purchaser,  the  issue  being, 
whether  he  was  entitled  to  equitable  protection  as  such.  Lacoste  v. 
Odam,  26  Tex.  458. 


CII.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  269 

that  the  party  had  reasoimhle  cause  to  believe  tlie  insol- 
vency and  fraudulent  purpose  of  the  debtor.  Held,  a 
correct  instruction.'  So  a  new  trial  was  refused,  where, 
before  the  instructions  excepted  to,  the  court  explained  to 
the  jury  the  nature  and  character  of  the  charge,  describing 
substantially  the  two  forms  in  which  it  was  presented  in 
the  several  counts.  Such  explanations  are  to  be  treated 
as  part  of  the  instructions.^  So  in  case  of  a  charge,  that 
the  court  "  was  not  a  little  surprised  that  there  should  be 
an  attempt  made  to  acquit  the  defendant,"  but  that  it  was 
the  duty  of  the  jury  to  find  according  to  the  evidence, 
and  to  acquit  or  convict  thereon.^ 

§  24.  So  a  new  trial  will  not  be  granted,  if  the  court, 
after  giving  an  erroneous  instruction,  and  before  the  case 
is  given  to  the  jury,  correct  it.^  Or  on  account  of  a 
charge,  that  in  the  opinion  of  the  judge  there  is  not  suf- 
ficient evidence  to  establish  a  certain  fact,  when  at  the 
same  time  he  instructs  the  jury  to  consider  the  evidence, 
and  to  decide  as  they  shall  find  the  truth  to  be,^  So, 
where  the  law  has  been  fully  and  fairly  submitted  to  the 
jury  by  the  judge,  in  his  summing  up  in  conclusion,  and 
the  court  is  satisfied  that  the  verdict  is  in  accordance  both 
with  the  law  and  justice  of  the  case;  a  new  trial  will  not 
be  awarded,  on  account  of  some  inaccuracy  of  language 
as  to  the  right  of  the  parties,  which  may  have  been  used 
by  the  judge  during  the  progress  of  the  trial.^(a) 

'  Whitcher  v.  Sliattuck,  3  Allen,  *  Sloo  v.  Roberts,  7  Ind.  128. 

319.  5  Gardner  v.  Pickett,  19  Wend. 

2  Castle  V.  Bullard,  23  How.  190.  18(J. 

3  Keaton  v.  State,  7  Geo.  189.  ^  Carter  ».  Buchanan,  9  Geo.  539. 

(a)  An  instruction,  although  correct,  may  be  properly  refused,  when  it 
has  been  substantially  given  in  a  different  form.  Mason  v.  Jones,  36  111. 
212 ;  Ilcssing  v.  McCloskey,  37  111.  341 ;  Murphy  v.  People,  ib.  447.  When 
a  fact,  constituted  of  several  distinct  elements  or  parts,  is  clearly  sub- 
mitted, and  the  finding  of  it  by  the  jury  implies  a  consideration  of  them, 
they  need  not  be  enumerated.    Maryland  v.  Porter,  19  Md.  458.    There 


270  THE   LAW    OF   NEW    TRIALS.  [CH.  XT. 

§  25.  ITor  if  tliG  wliole  charge,  taken  together,  does  not 
mislead  the  jury;  though  some  of  the  instructions  be 
slightly  repugnant  to  each  other.^  Otherwise  if  the  words 
are  true,  but  such  as  to  mislead  the  jury.'^ 

§  26.  It  is  no  ground  of  new  trial,  that  the  charge  given 
by  the  court  below  adopted  the  very   language  of  the 


'  Carringtou  v.  The  Pacific,  etc.,        ^  gniitli  v.  Ovcrby,  30  Geo.  241. 
1  Cal.  475.' 


is  no  ground  of  exception  to  instructions,  stating  in  general  propositions 
the  kxw  of  domicile  as  applicable  to  the  facts,  though  embraced  in  a  dif- 
ferent form  from  the  instructions  asked  for,  it  not  appearing  that  the 
judge  made  any  improper  reference  to  the  evidence,  or  that  the  jury  failed 
to  appreciate  and  apply  them.  Wilson  v.  Terry,  11  Allen,  206.  If  there 
is  a  controversy  as  to  the  value  of  an  easement  in  a  canal  in  a  city,  into 
which  drains  and  sewers  lead;  a  request  for  an  instruction  to  the  jury, 
that,  in  estimating  such  value,  they  should  consider  all  the  lawful  uses 
to  which  the  canal  has  been  subjected,  and  the  effect  of  such  uses,  cither 
in  impairing  the  value  of  the  canal  for  navigation,  or  as  leading  to  its 
probable  suppression,  as  a  nuisance,  is  sufficiently  complied  with  by  an 
instruction  to  them,  that  they  are  to  determine  the  value  of  the  easement 
at  that  time,  having  reference  to  the  state  of  things  as  they  then  existed, 
the  sort  of  canal,  its  depth,  width,  character,  degree  of  ofTensiveness,  and 
all  the  facts  and  conditions  affecting  the  quality  and  character  of  the 
easement,  and  the  land  with  which  it  was  connected.  Whitman  v.  Boston, 
7  Allen,  313.  An  instruction,  in  an  action  for  a  malicious  suit,  that,  if 
the  jury  found  for  the  plaintiff,  they  should  give  him  such  a  sum  as  would 
indemnify  him  for  the  injuries  he  had  sustained  by  the  wrongful  acts  of 
the  defendant,  is  sufficient,  in  the  absence  of  any  request  for  more  spe- 
cific instructions.  Leach  v.  Wilbur,  9  Allen,  212.  The  consideration  of 
a  guaranty  was  alleged  to  be  the  taking  by  the  plaintiff  of  the  note  gua- 
ranteed, in  settlement  of  a  certain  matter  between  A.  and  the  defend- 
ant, when  in  fact  it  was  a  matter  between  A.  and  the  plaintiff.  The 
declaration,  as  originally  drawn,  contained  the  word  "plaintiff,"  and  the 
change  was  afterwards  made  by  mistake.  Attention  was  not  called  to  it 
on  the  trial,  and  the  judge,  without  noticing  the  error,  charged  the  jury 
that  they  were  to  find  for  the  plaintiff,  if  they  found,  among  other  things, 
the  consideration  of  the  guaranty  to  be  the  taking  of  the  note  in  settle- 
ment of  a  matter  between  A.  and  the  plaintiff.  Held,  a  new  trial  ought 
not  to  be  granted.     Rice  v.  Almy,  32  Conn.  297. 


en.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  271 

Supreme  Court.^  The  court  remarks  as  follows:  "The 
numerous  quotations  from  judicial  opinions,  predicated  of 
a  state  of  facts  peculiar  to  each  case,  were  not  the  most 
satisfactory  and  skilful  mode  of  answering  the  points.  A 
brief  and  comprehensive  statement  of  the  results  of  the 
authorities  is  always  better  for  a  jury  than  the  authorities 
themselves.  Judicial  opinions  are  written  to  guide  judges, 
not  juries.  The  law  is  often  like  particles  of  shining  ore 
mixed  in  a  mass  of  crude  rul)])ish,  from  which  tlie  intel- 
lect of  the  judge,  operating  like  a  magnet,  should  extract 
it  for  the  service  of  the  jury.  But  when,  instead  of  doing 
this,  he  hands  over  the  mass  itself  to  the  jury,  how  are 
we  to  say  they  did  not  find  the  ore? — We  are  bound  to 
presume  that  they  performed  the  possible  duty  which  was 
hxid  upon  them."* 

§  27.  But  it  is  error  to  instruct  the  jury  by  reading  an 
extract  from  a  published  opinion  of  the  Supreme  Court, 
which,  apart  from  the  context,  appears  likely  to  mislead 
them,  and  fails  to  give  the  necessary  instruction.^(rt)  And 
if  a  court  of  appeal  send  a  cause  back  for  a  new  trial,  the 
court  below  should  not  give  to  the  jury,  in  the  authorita- 
tive form  of  an  instruction,  the  comments  of  the  court  of 
appeal  on  the  evidence,  without  suitable  explanations  of 
the  province  of  the  jury. ^ 

§  28.  "When  the  instruction  to  the  jury  is  such  that  the 
ground  upon  which  the  verdict  was  rendered  cannot  be 

•  Hood  V.  ITood,  2."5  Pcnn.  417.  '  Loehncr  v.  Ilomc,  &c.,  lO^Iis. 

2  Per   Woochvard,  J.,   Hood  v.     G28. 
Hood,  25  Peuii.  432.  *  Talmagefl.Davenport,2Vroom, 

561. 

(a)  In  scire  facias,  to  charge  the  real  estate  of  a  decedent,  upon  a 
judgment  obtained  against  the  executor,  it  is  error  to  allow  counsel  to 
read  to  the  jury  in  the  concluding  argument  the  charge  delivered  by  the 
judge  upon  the  original  trial  of  the  cause.  JJutler  v.  Slam,  50  Penn. 
456. 


272  THE   LAW   OF   NEW    TRIALS.  [CH.  XI. 

ascertained,  it  must  be  set  aside.^  So  where  two  grounds 
were  taken  by  a  party,  and  it  does  not  appear  upon  which 
the  verdict  was  rendered,  and  there  is  a  misdirection  as  to 
one.-  So  where  the  court  misapprehended  the  object  for 
which  certain  testimony  was  introduced,  and  shaped  the 
charge  accordingly.^  So,  in  an  indictment  for  a  larceny 
of  several  articles,  if  the  court  instruct  the  jury,  that,  if 
they  find  the  accused  guilty  as  to  one  of  the  articles,  they 
should  find  a  general  verdict  of  guilty;  although  the 
punishment  would  be  the  same  in  both  cases.^  So  where, 
in  an  action  upon  a  joint  note  "  payable  and  negotiable" 
at  a  certain  bank,  the  judge  wrongly  instructed  the  jury, 
that  the  negotiability  was  thereby  restricted,  and  also, 
correctly,  that,  if  the  note  was  used  by  one  partner  for 
his  private  debt  without  consent  of  the  other,  the  plain- 
tifts  could  not  recover ;  and  there  was  a  general  verdict 
for  the  defendants.'  So,  in  an  action  on  a  note,  the  plain- 
tiff first  proved  one  consideration  for  the  note;  then,  upon 
impeachment  of  this  consideration,  another;  and  finally 
relied  upon  evidence,  introduced  by  the  defendant,  of  his 
(the  plaintiff's)  own  declarations,  which  showed  that  both 
the  former  considerations  w^ere  unfounded.  A  new  trial 
was  granted  for  an  instruction,  as  requested,  that  the 
plaintiff  might  recover  on  either  of  the  grounds  above 
stated.^ 

§  29.  But  where  there  is  but  one  exception  to  a  refusal 
to  give  a  certain  charge,  if  any  part  of  the  charge  should 
not  have  been  given,  the  refusal  must  be  affirmed.^ 

§  30.  A  new  trial  will  be  granted  for  taking  a  question 


"  Holmps  V.  Doano,  9  Cnsh.  135.  ^  WinshcU  v.   Latham,  6  Cow. 

2  Gill  V.  Ktiul.  o  K.  I.  ;m.  183. 

3  Formby  v.  Prior,  15  Geo.  258.  '  Mft^ec  v.  Badger,  30  Barb.  246; 
*  The     State    v.    SonuTville,    8  Preston  ?i.  Loighton,  6  Md.  88;  Van 

Shep.  20.  Kirk  v.  Wilds,  11  Barb.  520. 

6  Warden  v.  Hughes,   3  Wend. 
418. 


en.  XL]        ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  273 

of  fact  from  the  jury.'(rt)  And  not,  on  the  otlier  hand, 
for  leaving  such  question  to  the  jury;'  however  weak 
may  be  the  evidence.'  More  especially  if  there  is  a  con- 
flict of  evidence.''  Or  for  keeping  distinct  the  questions 
of  law  and  fact.**  Or,  in  general,  for  stating,  in  the  form 
of  instructions,  the  law  applicable  to  the  case.^(6) 

§  31.  It  is  "  the  province  of  the  court  to  see  that  all 
proper  evidence  offered  be  submitted  to  the  consideration 

>  McDoiii^ald  «.  Dawson.  :]0  Ala.        *  Trauii  v.  KoitTer,  31  Ala.  186; 

5r^n-  Guuter  0.  Lockey,  80  Ala.  r,iU;  Robiusoa  v.  Brooks,  82  Ala.  222. 
White  V   Hass.  33  Ala.  430  ;  Kin-        *  Hihler  v.  McCartney,  81  Ala. 

man  v.  Cannefax,  34  Mis.  147.  501  ;  Price  v.  Mazange,  ib.  701. 

2  Taylor  v.  Kelley,  31  Ala.  59.  ^  Robinson  v.  State,  15  Tex.  311; 

3  Traun  v.  Keiffer,  31  Ala.  136  ;  Wilson  v.  Lorame,  15  ib.  4!)2. 
Rogers  v.  Brooks,  3  Morg.  240. 


(a)  Where  a  cause  is  tried  on  an  agreed  statement  of  fads,  which 
contains  no  admission  of  a  fact  essential  to  the  defence ;  a  general  charge 
in  favor  of  the  defendant  is  an  invasion  of  the  province  of  the  jury.  Case 
V.  Williams,  2  Cold.  239  ;  Gunter  v.  Lackey,  30  Ala.  591.  The  facts  are 
to  be  found  by  the  jury,  unless  admitted,  and  the  judge  can  only  regard 
them  as  claimed,  for  the  purpose  of  applying  the  law  to  them  contin- 
gently, if  found ;  and  he  cannot  properly  refuse  to  charge  upon  the  facts 
claimed  on  the  ground  that  in  his  opinion  they  are  not  proved.  Morris 
V.  Piatt,  32  Conn.  75  ;  31  111.  238.  It  is  erroneous  to  instruct  a  jury  to 
disregard  certain  items  in  an  account,  in  regard  to  which  evidence  has 
been  given.  Myers  v.  Walker,  31  111.  353.  It  would  be  improper  to 
strike  out  a  plea,  because  it  was  not  supported  by  the  proofs  in  the  case. 
Orne  v.  Cook,  31  111.  238.  It  is  error  to  instruct  the  jury  that  the  plain- 
tiffs are  entitled  to  recover,  where  the  right  depends  entirely  on  the  tes- 
timony.    Hill  V.  Caufield,  56  Penn.  454. 

(fc)  In  some  States,  the  statutory  law  has  forbidden  comments  on  the 
evidence.  Morris  v.  Morris,  28  Mis.  114;  Chouquette  v.  Barada,  ib.  491. 
In  California,  it  is  held  unconstitutional  to  charge  that  certain  circum- 
stances arc  to  be  received  with  great  caution,  and  that  the  court  is  in 
doubt  whether  they  be  admissible  at  all.  Seligman  v.  Kalkman,  8  Cal. 
207.  In  Illinois  instructions  must  be  written.  Ray  v.  Wooters,  19  111. 
82— St.  1856,  829.  In  Indiana,  a  request  (under  2  Rev.  Sts.  p.  110,  s. 
324)  to  have  all  instructions  reduced  to  writing,  must  be  made  seasonably. 
It  is  too  late,  when  the  court  is  proceeding  to  charge  orally.  Newton  v. 
Newton,  12  lud.  527 ;  Cortner  v.  Amick,  13  ib.  463. 
18 


274  THE   LAW    OF   NEW    TRIALS.  [CU.  XI. 

of  the  jury,  without  Baying  what  effect  such  evidence 
ou^lit  to  have."^  "  Whenever  the  judge  delivers  his 
opinion  to  the  jury  on  a  matter  of  fact,  it  shall  be  deli- 
vered as  mere  opinion,  and  not  as  direction,  and  the  jury 
shall  be  left  to  understand  clearly  that  they  are  to  decide 
the  fact,  upon  their  own  view  of  the  evidence,  and  that 
the  judge  interposes  his  opinion  only  to  aid  them  in  cases 
of  difficulty,  or  to  inspire  them  with  confidence  in  cases 
of  doubt."^  And  although  an  expression  of  opinion,  as 
to  an  inference  of  a  fact  from  evidence,  affords  in  general 
no  ground  for  exception,  yet  it  is  otherwise,  if  the  judge 
instruct  the  jury  as  to  such  inference,  in  such  manner  that 
they  might  well  understand  that  the  inference  is  matter 
of  law,  which  they  are  not  at  liberty  to  disregard.'  Or 
if  the  charge  of  the  judge  is  such  as  is  likely  to  be  under- 
stood as  a  direction  in  a  point  of  law,  instead  of  a  mere 
expression  of  opinion  on  the  facts.*  So  a  new  trial  will 
be  granted,  for  any  instruction  as  to  matters  of  fact,  or 
the  weight  of  evidence.^  Or,  where  there  is  any  evidence, 
for  an  instruction  that  there  is  none.®(a) 

§  32.  It  is  a  common  practice,  for  the  defendant  to  move 
for  a  nonsuit^  upon  the  ground  that  the  plaintiff's  evidence 
is  insufficient  to  sustain  the  action.  Upon  this  subject,  it 
is  held  that  refusing  a  nonsuit  is  no  ground  for  new  trial, 
if  the  proof,  a  want  of  which  would  be  the  ground  of 
nonsuit,  is  afterwards  supplied ;  as,  for  example,  proof  of 

•  PerFloinins,  J.,  Fishers.  Dim-  ••  Still  v.  Glass,  1  Kelly,  475. 

can,  ]  Hen.  &  M.  563.  *  Battcrsby  v.  Abbott,  9  Cal.  505. 

2  N.  Y.,  &c.  V.  Walden,  12  John.  ^  Yates  y.  Brackeuridge,  27  Mis. 

513.  531. 

»  State  V.  Lynott,  5  R.  1.  295. 

(a)  If  the  charge  is  equivalent  to  a  determination  of  the  facts,  a  new 
trial  will  be  granted.  Case  v.  Williams,  2  Cold.  239.  Whether  the 
evidence  on  one  side  tends  to  establish  a  particular  fact,  is  a  question  of 
law,  whilst  its  weight  and  convincing  force  are  for  the  jury,  Tuttle  v. 
Buck,  41  Barb.  417. 


Cir.  Xr.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.         '         275 

demand,  in  an  action  against  the  drawer  of  a  check.  And 
this,  although  a  nonsuit  was  cLaimed,  and  exception  taken 
to  the  rcfusah'  ]^or  where  the  defendant  moved  for  a 
nonsuit,  for  want  of  proof  of  a  fact  which  the  plaintiff 
claimed  was  aduiitted  by  the  pleadings;  and  the  nonsuit 
was  refused,  and  the  fact  afterwards  proved  by  the  defend- 
ant himself.^  Nor  where  the  defendant  claimed  a  non- 
suit, because  a  fact  was  proved  by  a  copy  of  an  instrument 
instead  of  the  original;  but,  the  motion  being  overruled, 
proceeded  with  the  case,  and  himself  proved  the  same  fact 
by  parol  evidence,  not  objected  to.  The  court  say,  "If  the 
defendant  chooses  to  go  into  his  defence,  and  supplies  the 
evidence  which  the  plaintiff  ought  to  have  produced,  the 
reason  for  setting  aside  the  verdict  no  longer  exists.  It 
is  an  assertion  by  the  defendant  that  the  fact  was  as  stated 
by  his  witness. "3  iN'or  for  a  refusal  to  rule,  that,  upon 
the  plaintiffs  evidence,  the  defendant  is  entitled  to  a 
verdict,  ^(a) 

§  33.  More  especially,  the  judge  is  not  bound,  upon 
motion  of  the  defendant,  to  decide  upon  the  sufficiency  of 
the  plaintiff's  evidence  to  maintain  the  action,  unless  the 
whole  testimony  is  closed,  and  the  defendant  intends  to 
offer  no  evidence.'  Nor  shall  a  new  trial  be  granted, 
where  there  is  a  motion  for  nonsuit,  but  the  judge  over- 
rules it,  rightly  declares  the  evidence  sufficient  to  main- 
tain the  action,  and  instructs  the  jury  to  find  for  the 

Murray  v.  Judali,  6  Cow.  484.  *  Bassett  v.  Porter,  4  Cnsli.  487 

2  Lansiiig    v.    Van    Alstyne,    2        ^  Barrett  c. Maiden,  &c.,  3  Allen, 

Wend.  561.  101. 

*  Jackson  v.  Leggett,  7  "Wend. 

377. 

(a)  Whenever  the  evidence  is  not  legally  sufficient  to  warrant  a  reco- 
very, it  is  the  duty  of  the  court  to  instruct  the  jury  accordingly.  But 
if  there  be  evidence  from  which  the  jury  may  draw  an  inference,  the  case 
ought  not  to  be  taken  from  them,  though  the  evidence  lead  unavoidably 
to  the  conclusion  that  the  plaintifif  has  no  case.  Schuchardt  v.  Aliens, 
1  Wall.  359. 


276  THE   LAAV    OF   NEW    TRIALS.  [CII.  XL 

plaintiff.'  And  the  general  rule  is  sometimes  laid  down, 
that  it  is  not  a  ground  of  new  trial  that  a  nonsuit  was 
refused,  when  not  consented  to  by  the  plaintiff;  as  the 
better  practice  is  to  send  the  evidence  to  the  jury  with 
the  proper  instructions.^ 

§  34.  But  on  the  other  hand  it  is  held  ground  of  new 
trial,  that  a  fact  was  submitted  to  the  jury  without  evi- 
dence.2  Thus  a  new  trial  was  granted  for  a  refusal  to 
nonsuit,  upon  a  doubt  as  to  the  power  of  the  court,  where 
there  was  no  dispute  about  the  facts,  or  any  weighing  of 
testimony;  but  a  pure  question  of  law,  whether  under  a 
given  state  of  facts  the  plaintiff  was  in  law  entitled  to 
recover.*  So  where,  in  answer  to  the  defence  of  insol- 
vency, the  plaintiff'  relied  upon  a  subsequent  promise  to 
pay;  but  the  evidence  did  not  show  a  clear,  explicit,  and 
absolute  promise;  and  the  case  was  still  left  to  the  jury, 
who  found  for  the  plaintiff.  The  court  should  have 
ordered  a  nonsuit.^  So  a  nonsuit  is  proper,  where  a  ver- 
dict for  the  plaintiff  would  be  against  evidence  or  the 
weight  of  evidence.  As  where,  in  an  action  upon  a  policy 
of  insurance,  a  nonsuit  was  ordered,  upon  the  ground  of 
fraudulent  concealment.^  So  a  new  trial  was  granted, 
where  letters  were  left  to  the  jury  as  evidence  of  a  posi- 
tive agreement  between  the  parties,  when  the  plaintiff' 
should  have  been  nonsuited.^  So  where,  upon  an  indict- 
ment for  the  sale  of  intoxicating  liquor,  after  proof  that 
the  defendant  declined  to  take  any  pay  for  the  liquor  de- 
livered, the  case  was  left  by  the  court  to  the  jury.^(a) 

I  Dean  v.  Ilowitt,  5  TTcnrl.  257.  ^  Brook  v.  Wood,  13  Price,  mi. 

«  Carr  v.  Gale,  3  W.  &  M.  38;  ^  Hoyt  v.  Oilman,  8  Mass.  336; 

Aiken  v.  Bemis,  3  W.  &  M.  348.  Dryden  v.  Britton,  19  Wis.  22. 

3  Jones  V.  Wood,  16  Penn.  25.  ^  Chcveley  v.  Fuller,  13  Com.  B. 

♦  Pratt   V.  Hull,    13  John.  334;  (4  J.  Scott)  122. 

Stuart  V.  Simpson,  1  Wend.  37G  ;  «  Com.  v.  Packard,  5  Gray,  101. 
Foot  V.  Sabin,  19  John.  154;  Bur- 
nett V.  Fulton,  1  Jones,  543. 

(a)  Where  there  is  no  evidence  to  sustain  an  issue,  it  is  the  duty  of 
the  court  so  to  inform  the  jury.     Ilyuds  v.  Ilays,  25  Ind.  31.     Wheu  a 


CH.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  277 

§  35.  If  an  erroneous  ruling  of  the  court  against  the 
plaintiff,  for  whom  a  verdict  is  given,  may  have  prevented 
the  defendant  from  making  a  full  defence,  a  new  trial  will 
be  granted.^  So  where,  after  the  close  of  the  plaintiff's 
evidence,  the  defendant  asked,  and  the  court  gave,  an  in- 
struction to  the  jury,  which  dispensed  with  evidence  on 
his  part;  and,  after  the  plaintiff  closed  his  argument,  the 
court  gave  a  different  instruction:  it  was  held,  that  the 
defendant  should  have  been  permitted  to  introduce  his 

'  Clarke  v.  Biggs,  6  Ired.  159. 

plaintiff  has  concluded  his  case,  •without  offering  sufficient  evidence  to 
support  it,  it  is  the  duty  of  the  court,  upon  the  request  of  the  defendant, 
to  instruct  the  jury  to  find  for  the  latter.  Clark's  v.  Hannibal,  36  Mis, 
202  ;  Smith  v.  Hannibal,  37  Mis.  287 ;  Hannibal  v.  Moore,  ib.  338.  To 
leave  a  question  to  the  jury,  without  some  evidence  upon  which  they 
might  base  their  verdict,  is  error.  Bond  v.  Hall,  8  Jones,  L.  14.  It  is 
not  error  to  take  a  question  of  fact  from  the  jury,  where  the  testimony 
is  undisputed,  and  the  court  takes  a  view  of  it  the  most  favorable  to  the 
party  excepting  that  the  jury  could  take.  Weaver  v.  Darby,  42  Barb. 
411.  Or  to  instruct  the  jury  to  find  for  the  plaintiff  if  they  believe  the 
testimony,  there  being  no  evidence  contradicting  his  claim.  Spalding  v. 
Bull,  1  Duv.  311.  The  court  cannot  take  from  the  jury  a  case  in  which 
the  evidence  is  conflicting,  and  the  testimony  of  one  or  more  witnesses,  if 
believed,  would,  taken  by  itself,  support  a  verdict.  Reed  v.  Peerfield,  8 
Allen,  522.  When  evidence  is  direct,  leaving  nothing  to  inference,  and, 
if  believed,  is  the  same  thing  as  the  fact  sought  to  be  proved,  the  judge 
may  instruct  the  jury,  that,  if  they  believe  the  witness,  they  may  find 
for  the  plaintiff  or  defendant.  Gaither  v.  Ferebee,  1  Wins.  No.  1,  310. 
Otherwise,  when  the  evidence  is  circumstantial,  or  when  the  evidence  on 
the  other  side  tends  to  explain  it  or  to  rebut  the  inferences  sought  to  be 
drawn  from  it,  or  to  contradict  the  witness.  Although,  where  the  de- 
fendant fails  to  tender  any  defence  to  a  particular  count,  the  plaintiff  is 
entitled  to  judgment  thereon;  such  judgment  must  be  given  by  the  court, 
and  it  is  not  error  to  refuse  to  instruct  the  jury  that  the  plaintiff  is  en- 
titled to  recover  thereon.  Sinclair  v.  Gray,  9  Flori.  71.  In  Illinois,  the 
practice  of  the  court  precludes  it  from  instructing  the  jury  as  in  case  of 
a  nonsuit,  where  a  material  fact  is  omitted  to  be  proved  by  the  plaintiff; 
but  the  defendant  may  ask  the  court  to  instruct  the  jury,  that,  if  the 
given  fact  was  not  proved,  they  should  find  a  verdict  in  his  favor.  Deshler 
V.  Beers,  32  111.  368. 


278  THE    LAW    OF    NEW    TRIALS.  [CU.  XI. 

evidence;  and,  wliere  he  did  not,  that  it  was  error  not  to 
grant  a  new  trial. ^ 

§  36.  It  has  already  been  stated,  generally,  that  the 
court,  on  the  one  hand,  may  properly  instruct  the  jury 
upon  points  of  law,  and  on  the  other,  may  properly  refuse 
to  interfere  wnth  questions  of  fact.  It  remains  to  ex- 
plain more  particularly  these  general  rules,  with  their 
respective  applications  and  modifications.  The  distinc- 
tions are  often  very  nice,  and  it  is  difficult  to  reconcile  all 
the  cases. 

§  37.  The  question,  how  far  evidence,  that  is  legitimate 
and  properly  admitted,  is  material,  and  to  how  much 
weight  it  is  entitled,  is  for  the  jury.  It  is  erroneous  to 
instruct  them  as  to  the  materiality  of  evidence.^  And  a 
new  trial  will  be  granted  for  a  wrong  ruling  as  to  the  in- 
sufficiency of  the  testimony  to  maintain  the  action.^ 
Hence  where,  in  an  action  against  a  railroad  for  negli- 
gence, the  plaintiff  called  but  one  witness,  and  he  effect- 
ually disproved  the  charge;  the  judge  having  refused  to 
instruct  the  jury  that  the  plaintifi' had  failed  to  maintain 
the  charge,  a  new  trial  was  granted.*  And  on  the  other 
hand,  where  there  is  any  evidence,  however  weak,  tend- 
ing to  establish  a  material  question  in  the  case,  or  any 
issue  joined,  the  court  may  properly  refuse  to  charge  the 
jury  that  it  is  insufficient  ;5  and  it  is  error  to  instruct  the 
jury  that  there  is  no  evidence  f  though  a  remark  of  the 
court,  that  the  testimony  is  insufficient,  where  it  is  left  to 
the  jury,  is  held  not  to  be  ground  for  a  new  trial.^  So 
when  there  is  any  conflict  in  the  evidence  on  a  material 

1  Moreland    v.    McDermott,    10        «  Trann  v.  Koiffor,  31  Ala.  1R6. 
Mis.  605.  ^  Yatrs  v.  Brackeiiridge,  27  Mis. 

2  Stacy  V.  Cobbs,  30  111.  349.  .')31  ;  Flomraing  v.  Marine,  &c.,  4 
'  Avhvin  v.  UlnuT,  12  Mass.  22;     Wliart.  59. 

BondV.  Mallow,  17  Tex.  636.  '  Schouemant?.  Fegley,  UPenn. 

«  Undorliill  v.  New  York,  «S:c.,     376. 
21  Barb.  489. 


en.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  279 

point,  tlie  court  may  properly  refuse  a  general  charge  in 
favor  of  either  party.'  And  a  charge  that  the  plaintiff 
should  recover,  when  an  inference  of  fact  must  be  drawn, 
is  erroneous.*  So  where  a  plaintiff  offers  evidence  to 
prove  his  allegations,  it  is  error  for  the  court  to  instruct 
the  jury  that  no  evidence  was  offered  which  would  war- 
rant the  jury  in  finding  a  verdict  for  the  plaintifi'.^  The 
court  is  authorized  to  instruct  the  jury,  th^ft  if  they  be- 
lieve all  the  evidence  they  must  find  for  the  defendant, 
only  in  cases  where  a  demurrer  to  the  evidence  might 
have  been  sustained;  such  a  charge,  therefore,  should  never 
be  given,  where  there  is  any  evidence  which  reasonably 
tends  to  establish  the  plaintifi''s  case.* 

§  38.  But,  on  the  other  hand,  a  new  trial  was  granted, 
where  slight  evidence  of  handwriting  was  offered,  and  the 
jury  instructed  that  the  plaintiff*  was  entitled  to  a  ver- 
dict.* So,  where  there  is  no  conflict  in  the  testimony,  and 
no  room  to  doubt  or  hesitate  as  to  a  matter  of  fact  in 
issue,  the  judge  in  his  charge  ought  not  to  assume  that  it 
is  or  may  be  doubtful.  The  rule,  which  forbids  a  judge 
to  charge  on  the  weight  of  evidence,  does  not  require  or 
authorize  him  to  assume  as  doubtful  that  which  is  clear 
and  indisputable.  It  is  only  where  there  may  be  doubt, 
that  the  rule  applies,  that  the  court  shall  not  charge  on 
the  weight  of  evidence.® 

§  39.  A  new  trial  will  be  granted,  in  a  case  of  conflict- 
ing evidence,  for  the  instruction,  that,  if  the  jury  believe 
the  evidence,  they  must  find  in  a  particular  way."(a)  Thus 

'  Robinson  v.  Brooks,    83   Ala.  ^  Utica,  &c.  v.  Badger,  3  Wend. 

223  ;  Scroggius  v.  Wilson,  13  Mis.  102. 

80.  6  Wintz  V.  Morrison,  17  Tex.  373. 

2  White  V.  Hass,  33  Ala.  430.  ?  Williams  o.  Harlshoru,  30  Ala. 

3  Houghtalingi'.  Ball,  19  Mis.  84.  211. 
*  Freeman  v.  Scurlock,  37  Ala. 

407. 

(a)  It  is  error  to  take  from  the  jury  a  question  in  reference  to  which 
the  evidence  couflicts.     Brooke  v.  Grand,  15  Mich.  332. 


2(S0  THE   LAW    OF   NEW    TRIALS.  [ciI.  XT. 

whore  there  is  the  least  conflict  of  evidence,  a  general 
charo:c  for  tlie  plaintiflr",  if  the  jury  believe  the  evidence, 
is  erroneous.'  So  where  the  judge  instructed  the  jury, 
that  the  evidence  oifered  by  the  plaintiif  was  conclusive 
evidence  of  the  barratry  which  was  alleged  in  the  case; 
that  the  evidence  of  the  defendants  was  not  sufficient  to 
maintain  the  issue  on  their  part,  or  to  bar  the  action;  and 
that,  if  the  j*iry  agreed  with  him,  they  ought  to  find  for 
the  plaintiffs.^  So  where,  in  an  action  for  dilapidations, 
the  judge  told  the  jury,  that  it  was  not  like  an  action  for 
goods  sold  and  delivered,  and  that  the  plaintifi'  might  rest 
upon  general  evidence  in  support  of  his  particulars  of  de- 
mand, without  proving  every  item,  especially  as  the  jury 
had  viewed  the  premises,  with  the  particulars  in  their 
hands,  and  would  therefore  be  able  to  judge  whether,  and 
to  what  extent,  the  plaintiff  had  made  out  his  case.'  So 
where  a  judge  declared  the  evidence  sufficient  to  entitle 
the  plaintiff  to  recover,  and  so  left  the  cause  to  the  jury, 
it  will  be  deemed  a  positive  direction  to  find  for  the  plain- 
tiff; and,  where  there  are  circumstances  that  ought  to 
have  been  submitted  to  the  jur}^,  a  new  trial  will  be 
granted.*  So  though  one  witness,  an  expert,  testify,  that  at 
the  time  of  the  sale  the  property  sold  was  valueless,  which 
is  the  only  direct  evidence;  yet  the  jury  are  not  to  be  in- 
structed to  find  the  full  value  for  the  vendee  on  that  evi- 
dence, unless  they  are  also  satisfied  on  all  the  proof.*  So 
a  trader,  in  consideration  of  advances  in  cash  and  goods, 
assigned  all  his  stock  to  the  defendants,  to  secure  such 
advances,  and  also  a  debt  previously  due  to  them.  The 
goods  so  assigned  comprised  all  his  property,  except  some 
household  furniture  and  book-debts.  In  an  action  by  the 
assignees  of  the  trader  to  recover  the  value  of  the  goods 


'  Peebles  v.  Tomlinson,  33  Ala.  *  Fitza:oraltl    v.    Alexander,    19 

336.  Wend.  402. 

2  Now  York,  &c.  v.  Waldon,  12  s  HoUoway   v.  Gotten,    33    Ala. 
John.  513.  529. 

3  Smilh  V.  Douglas,  32  Eng.  Law 
and  Eq.  319. 


CH.  XI.]         ERRONEOUS    RULINGS   OR   INSTRUCTIONS.  281 

eeized  under  this  bill  of  sale,  the  judge  left  it  to  the  jury, 
with  very  strong  observations,  to  say  whether  they  would 
infer  an  intent  to  defeat  and  delay  creditors.  The  jury 
having  found  for  the  plaintiffs,  the  court,  thinking  they 
might  have  been  misled  by  the  observations  of  the  judge, 
granted  a  new  trial,  the  costs  to  abide  the  event.^  So  the 
defendants,  in  an  action  on  a  note,  claimed  to  have  paid 
the  whole  of  it  before  suit,  except  a  trifling  sum,  but 
this  claim  was  disputed  by  the  plaintiff,  who,  after  the 
testimony  was  closed,  offered,  if  the  jury  should  be  against 
him  on  this  point,  to  allow  a  verdict  to  be  rendered  against 
him,  and  requested  the  court  so  to  instruct  the  jury.  Held, 
the  court  were  not  bound  to  accept  this  offer,  or  so  to 
charge  the  jury.^  So  on  the  trial  of  an  action  in  which  a 
division  line  was  in  dispute,  the  plaintiii"  proved  acts  and 
admissions  of  the  defendant  and  those  under  whom  he 
held,  which  recognized  the  plaintiff's  line,  and  the  defend- 
ant gave  in  evidence  sundry  deeds  and  surveys  to  prove 
his  line.  The  defendant  requested  a  charge,  that,  if  the 
jury  were  satisfied  from  the  deeds  and  surveys  taken  by 
the  parties,  that  the  line  was  located  as  the  defendant 
claimed,  then  they  were  to  disregard  the  acts  and  admis- 
sions proved  by  the  plaintiff.  Held,  he  was  not  entitled 
to  such  charge,  it  being  the  duty  of  the  court  to  submit 
the  question  to  the  jury  upon  the  whole  evidence  taken 
together.^(a) 

'  Pennell   v.  Dawson,   36   Eng.        '  Scovill  v.  Baldwin,  37  Conn. 
Law  and  Eq.  481.  316. 

«  Austin  V.  Bingham,  31  Vt.  577. 

(a)  Where  the  evidence,  in  an  action  to  recover  for  horses  killed  by 
the  cars  of  the  defendant,  tended  to  show  that  the  engineer  neglected  to 
comply  with  the  requirements  of  the  statutes,  as  to  blowing  the  whistle, 
ringing  the  bell,  or  reversing  the  engine,  a  charge  to  the  jury  that,  if 
they  believe  the  evidence,  they  must  find  for  the  plaintiff,  is  erroneous. 
The  jury  alone  could  infer  from  the  evidence,  that  the  damage  was  caused 
by  the  engineer's  neglect.  Memphis,  &c.  v.  Bibb,  1  Ala.  (S.  C.)  630.  So 
the  sufficiency  of  evidence  to  establish  the  fact  of  agency  is  a  qucstioa 


282  THE    LAW    OF   NEW    TRIALS.  [CII.  XI. 

§  40.  But  where  the  evidence  on  a  point  is  all  one  way, 
the  court  is  right  in  not  submitting  the  question  to  the 


for  the  jury;  and  an  instruction  that  the  evidence  is  insufficient  is  erro- 
neous. Bank  v.  Plannett,  1  Ala.  (S.  C.)  178.  So,  if  there  is  any  evi- 
dence  of  fraudulent  intent  in  making  a  sale,  an  instruction  that  the  cir- 
cumstances would  not  justify  the  jury  in  finding  fraud.  Miller  v.  Stewart, 
24  Cal.  502.  So  in  a  suit  against  a  bank  on  bank-notes  destroyed,  the 
quantity  and  character  of  the  evidence  relating  to  the  destruction  is  for 
the  jury;  and,  where  it  was  such  as  to  justify  the  submission  of  the 
question  to  them,  their  finding  was  held  conclusive.  Hagerstown  v. 
Adams,  45  Penn.  R.  419.  In  an  action  upon  a  negotiable  note  payable 
at  a  certain  bank,  the  defendant  contended  that  the  note  was  originally 
signed  by  him  to  take  up  a  note  of  his  son,  the  amount  of  which,  with 
interest,  equalled  this;  that,  at  the  request  of  the  payee,  since  dead,  an- 
other note  was  made,  with  interest  included  in  the  principal,  in  order 
that  it  might  be  discounted,  and  the  payee  by  mistake  carried  away  both 
notes ;  that  the  other  note  was  paid  by  the  defendant,  and  there  was  no 
consideration  for  the  note  in  suit;  and  offered  evidence,  that  a  note  of 
the  same  amount  with  the  other  note  had  been  paid  by  him  at  the  t):ink, 
and  that  the  note  in  suit  had  never  been  there  nor  inquired  for  by  him 
there,  and  that  the  payee  had  never  demanded  payment  thereof  during 
his  life.  Held,  that  there  was  sufficient  evidence  to  be  submitted  to  the 
jury,  and  a  ruling  to  the  contrary  entitled  the  defendant  to  a  new  trial. 
Cushing  V.  Willard,  11  Gray,  247.  The  court  is  not  bound  to  give  special 
instructions,  at  the  request  of  counsel,  on  a  hypothetical  case.  State  v. 
Murph.  1  Wins.  No.  1,  129.  Nor  upon  an  assumption  of  facts,  not  sup- 
ported by  evidence.  Where  there  are  several  possibilities  of  fact,  diffi^rent 
from  the  inference  intended  to  be  drawn  from  the  evidence  offered,  a 
judge  is  not  recjuired  to  note  one  such  possibility,  and  specifically  bring 
it  to  the  attention  of  the  jury.  State  v.  Clara,  8  Jones,  L.  25  ;  Gregory 
V.  Richards,  ib.  410;  New  England  v.  Wetmore,  32  111.  221 ;  Lawrence 
V.  Jarvis,  ib.  304.  Where  a  party  desires  instruction  on  a  given  hy- 
pothesis, he  must  state  the  facts  hypothetically,  if  controverted.  Penn- 
sylvania V.  McTighe,  46  Penn.  316.  See  Cullum  v.  Wagstaff,  48  Penn. 
300.  If  the  assumption,  in  a  point  presented  by  the  plaintiffs  and 
affirmed  by  the  court,  is  untrue  in  fact,  the  court  should  be  requested  by 
the  defendants  to  charge  upon  the  true  state  of  facts,  or  at  least  upon 
the  defendants'  hypothesis.  Where  this  is  not  done,  and  there  is  evi- 
dence as  to  the  correctness  of  the  assumption,  the  judgment  will  not  be 
reversed  because  of  a  direction  without  evidence  to  sustain  it.  I'hila- 
delphia  v.  Hagan,  47  Penn.  244. 


en.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  283 

juiy.^  And  it  is  lield  tliere  can  be  nothing  clearer  or 
better  settled,  than  that  it  is  proper  for  the  court  to 
charge  the  jury  directly  upon  the  legal  effect  of  the  ad- 
mitted or  uncontroverted  facts  of  the  case.^  So  where, 
after  conceding  all  points  on  which  there  is  a  conflict  of 
evidence  and  all  adverse  influences,  the  undisputed  facts 
establish  a  clear  legal  conclusion,  the  party  has  a  right  to 
a  charge  to  that  effect  in  his  favor.^  And  where  the  only 
witness  in  the  case  swore,  that  the  defendant  had  admit- 
ted the  correctness  of  the  account  stated  sued  on,  and  had 
promised  to  pay  it ;  it  was  held  no  fatal  error,  that  the 
court  instructed  the  jury  to  find  for  the  plaintiff,  if  they 
believed  the  witness.*  While,  on  the  other  hand,  an 
instruction  to  find  for  the  plaintiff,  if  the  jury  believe 
the  evidence,  is  bad,  where  there  is  anything  in  the  evi- 
dence, or  lawfull}^  to  be  inferred  from  it,  to  hinder  the 
plaintiff's  recovery,^  Thus  an  instruction,  in  an  action 
to  recover  for  work  and  labor,  which  excludes  from  con- 
sideration all  proof  of  a  special  contract  set  up  in  de- 
fence.^ 

§  41.  Although  the  court  has  not  the  power  to  instruct 
the  jury  upon  the  weight  of  evidence,  yet  it  has  the  power 
to  judge  of  the  tendency  of  evidence.  (See  §  56.)  "When 
the  evidence  does  not  tend  in  any  just  legal  view  to  make 
out  the  plaintiff's  case,  it  is  the  duty  and  province  of  the 
court  so  to  instruct  the  jury.^  Thus  it  is  not  error  to 
instruct  the  jury,  that  "all  the  circumstances  for  and 
against  the  prisoner,  which  were  proved  beyond  a  reason- 
able doubt,  must  be  taken  all  together,  and  not  sepa- 
rately."^    iSTor  to  pronounce  on  the  effect  of  evidence, 

'  United  States  v.  One  Still,  5        ^  Wiggins  v.  Holley,  11  Ind.  2. 
Blatchf.  C.  C.  403.  s  Lee  v.  Quirk,  20  111.  393. 

2  Hedsepcth    v.    Robertson,    18        ^  Garnett  v.  Kirkman,  33  Miss. 
Tex.  8.-.8.  380.     See  McFarlaud  v.  Wofford, 

3  Rhodes  V.  Otis,  33  Ala.  578.  16  Tex.  002. 

«  Terry  v.  Sickles,  13  Cal.  427.  «  tUo  State  v.  Rasli,  12  Ired.  383. 


284  THE    LAW    OF   NEW    TRIALS.  [CH.  XI. 

whore  it  is  siicli  that  it  would  be  the  duty  of  the  judge 
to  set  aside  the  verdict,  if  rendered  against  it.'(rt) 

§  42.  It  is  the  province  of  the  court  to  instruct  the  jury 
what  inferences  of  fact  they  would  be  warranted  in  draw- 
ing from  the  evidence  and  facts  proved,  and,  if  the  court 
should  not  err  as  to  the  kind  and  extent  of  such  infe- 
rences, exception  could  not  be  sustained,  even  though  the 
matter  should  be  so  plain  as  to  render  it  needless  to  say 
anything  about  it  to  the  jury.^  But  the  court  should  not 
instruct  the  jury  to  draw  inferences  which  are  not  legal 
inferences.^  (See  §  57.)  And  where  a  presumption  is  one 
of  fact  merely,  the  court  is  not  warranted  in  declaring  it 
to  the  jury  as  a  presumption  of  law.^ 

§  43.  A  judge  is  bound  to  instruct  the  jury  on  the  law 
itself,  and  not  on  its  history,  object,  or  purpose.  Thus  he 
may  refuse  to  charge,  that  the  only  object  of  the  register 
of  a  vessel  is  to  entitle  it  to  the  benefits  of  an  American 
bottom.'  Nor  is  it  the  duty  of  the  court  to  give  in  charge 
to  the  jury,  at  the  request  of  counsel,  any  law,  or  sections 
of  a  law.^ 

§  44.  The  preliminary  remarks  of  a  judge,  not  necessary 
to  the  merits  of  the  case,  in  his  charge  to  the  jury,  when 
the  law  is  correctly  stated,  aiford  no  ground  for  a  new 

'  Gr.iff    v.    Pittsburg,    &c.    81  <  Ham   v.  Barret,  28  Mis.  888; 

Penn.  4S9.  Kin^  v.  Pope,  28  Ala.  601  ;  Crum 

2  Brcwin  v.  Estate  of  Farrell,  39  v.  Williams,  29  Ala.  440. 

Vt.  20(5.  5  Lincoln  v.  Wright,  23  Penn.  76. 

«  Moies  V.  Eddy,  28  Mis.  382.  s  Kyan  v.  Jackson,  11  Tex.  391. 

(a)  A  judge  has  an  undoubted  right  and  discretion  to  make  such  com- 
ments upon  the  testimony  as  he  thinks  necessary  or  proper  for  the  direc- 
tion of  the  jury.  He  may  intimate  an  opinion  as  to  the  weight  of  evi- 
dence, or  direct  the  attention  of  the  jury  to  any  matter  in  the  cause 
affeeting  the  credibility  of  a  witness.  These  are  all  matters  of  judicial 
discretion,  and  a  mistake  in  the  exercise  of  this  discretion  is  not  assign- 
able as  error.     Bruch  v.  Carter,  3  Vroom,  554. 


en.  XI.]        ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  285 

trial.'  Nor  is  it  ground  of  new  trial,  that,  conformably 
to  practice,  certain  questions  are  submitted  to  the  jury 
without  objection.^  Or  that  the  judge  instructs  the  jury 
to  decide  particular  questions  of  fact  stated  to  them  in 
writing.^ 

§  45.  Comment  by  the  judge  upon  the  facts  is  not  neces- 
saril}'  erroneous,  where  the  issue  is  left  to  the  jury.*  "  The 
judge  who  presides  shall  always  direct  the  jury  in  matters 
of  law,  before  they  retire  or  withdraw,  and  also  assist  them 
as  to  matters  of  fact."^  Comments  "are  understood  to  be 
addressed  to  the  jury  merely  for  their  consideration,  as 
the  ultimate  judges  of  matter  of  fact ;  and  are  entitled  to 
no  more  weight  or  importance  than  the  jury,  on  the  exer- 
cise of  their  own  judgment,  choose  to  give  them."^  "  The 
jury  listen  to  the  remarks  of  the  court  upon  the  testimony, 
with  the  deference  due  to  learning  and  experience,  but 
with  a  perfect  understanding  that  they  must  decide  upon 
matters  of  fact  according  to  their  own  convictions."^  On 
questions  of  fact,  the  judge  has  the  right  to  advise  the 
jury,  and  aid  them  with  his  views  in  coming  to  a  conclu- 
sion, but  the  ultimate  decision  must  be  left  to  their  judg- 
ment.^(a) 

'  Mayor,  «S;c.  V.  Goetchius,  7  Geo.  ®  Per  Story,  J.,  Carver  ti.  Jack- 

139.  son,  4  Pet.  1. 

2  Allen  V.  Aldricli,  9  Post.  63.  '  Per  Willard,  P.  J.,  Lansing  v. 

»  Partridge  v.  Gilbert,  3   Duer,  Russell,  13  Barb.  r)21.     See  also  the 

184.  remarks  of  Mr.  Justice  Maule  in 

<  Althof  v.   Wolf,  2   Hilt.  844  ;  Doe  v.  Strickland,  8  Man.  G.  &  Sc. 

Flanders  v.  Colbv.  8  Post.  34.  742  ;  and  of  Fowler,  J.,  in  Nutting 

«  Hale's  Hist.  C.  L.  256.  v.  Herbert,  37  N.  H.  Soo. 

8  State  V.  Smith,  12  Rich,  430. 

(a)  An  instruction,  which  is  a  hypothetical  recapitulation  of  the  ma- 
terial facts,  is  objectionable.  Roe  v.  Taylor,  45  111.  485.  "Where  both 
parties  were  stock-brokers,  and  the  judge  charged  the  jury,  "that  the 
fact  that  both  parties  were  brokers,  and  might  be  presumed  to  know  the 
usages  of  their  business,  was  entitled  to  great  weight ;"  held,  not  a  charge 
upon  a  matter  of  fact  forbidden  by  Gen.  Sts.,  c.  115,  I  5.  Durant  v. 
Burt,  98  Mass.  161.     It  is  not  error,  for  a  judge  in  charging  the  jury, 


286  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

§  46.  It  is  to  some  extent  matter  of  discretion  with  the 
judge  how  far  he  will  state  the  facts,  in  summing  up  a  case.' 
It  is  said  by  an  English  judge:  "I  am  at  a  loss  to  know 
by  what  rule  the  precise  quantum  of  force,  which  should 
be  attached  by  a  judge  to  a  particular  piece  of  evidence, 
on  a  trial,  is  to  be  measured."''  So  Chief  Justice  Parker 
remarked,  in  vindicating  the  right  of  the  judge  to  express 
an  opinion  upon  the  facts:  "The  next  step  will  be,  to  move 
for  a  new  trial  on  account  of  the  expression  of  the  counte- 
nance of  the  judge."'' 

§  47.  Hence,  in  general,  comments  on  the  evidence  fur- 
nish no  ground  of  new  trial,  unless  injury  is  shown  to 
have  been  thereby  caused."  Or  pertinent  remarks,  not 
calculated  to  injure.^  Or  suggestions  as  to  facts.^  The 
judge  may  call  the  jury's  attention  to  the  evidence,  stating 
his  recollection  of  what  has  or  has  not  been  testified  to, 
and  submitting  the  whole  matter  to  their  consideration 
and  judgment.^     The  comment  of  a  judge  upon  evidence, 

>  Frost  v.  ISIartin,  9  Fost.  n06  ;  ^  Bulkeley  v.  Keteltas,  4  Sandf. 

Attv.-Geu.  V.  Good,  McCl.  &  You.  450. 

2b6  ^  Nutting  v.  Herbert,  37  N.  H. 

*'Per  Hallock,  B.,  Attv.-Gen.  v.  346. 

Good.  1  McCl.  &  You.  28r..  6  Patterson  v.  Colebrook,  9  Fost. 

3  Com.    V.  Child,  10  Pick.  252.  94. 

See  2  Jones,  418.  '  Eddy  v.   Gray,  4  Allen,  435  ; 

Marshall  v.  Morris,  16  Geo.  368. 


after  instructing  them  correctly  upon  a  point  presented  by  counsel,  to 
add  that,  as  a  general  rule,  it  was  the  fairest  and  best  way  for  a  jury  to 
decide  cases  mainly  upon  the  grounds  taken  and  discussed  by  counsel  in 
the  argument.  Melvin  v.  BuUard,  35  Vt.  268.  A  judge  may  express 
an  opinion  upon  the  facts,  if  they  are  properly  referred  to  the  jury;  but 
care  should  be  taken  not  to  infringe  the  province  of  the  jury,  so  as  to 
relieve  them  from  the  necessity  of  pronouncing  an  intelligent  judgment. 
Hence,  in  an  action  on  a  justice's  bond,  where  the  sole  question  was, 
whether  he  had  collected  the  money  sued  for  in  his  official  capacity,  the 
court,  after  recapitulating  the  testimony,  might  express  an  opinion  that 
the  justice  had  acted  and  received  the  money  ofiicially,  at  the  same  time 
referring  the  evidence  to  the  jury,  with  instructions,  that,  if  they  were 
satisfied  of  this  fact,  the  bail  was  liable,  though  no  suit  was  brought  on 
the  note.     Ditmars  v.  Com.,  47  Penn.  335. 


CH.  XI.]         ERRONEOUS    RULINGS   OR   INSTRUCTIONS.  287 

not  involving  any  opinion  or  direction  in  matter  of  law, 
is  not  a  proper  ground  of  exception.^  So  it  is  competent 
for  the  judge  to  state  that  certain  evidence  was  admissible 
which  was  objected  to,  and  in  the  absence  of  any  evidence, 
that  the  jury  misunderstood  him  to  say  that  it  controlled 
the  case,  it  will  not  be  error,^  And  a  charge,  reciting  the 
facts  as  claimed  to  have  been  proved,  and  giving  the  law 
upon  them  if  found  by  the  jury  to  be  true,  is  not  an  in- 
struction upon  the  facts.  Thus  a  charge  upon  the  legal 
effect  of  facts,  strongly  urging  the  support  of  the  law 
against  mob  violence.^ 

§  48.  So  where  the  jury  are  left  free  to  come  to  their 
own  conclusion  upon  a  question  of  fact,  the  mere  leaning 
of  the  judge  in  his  charge  upon  that  question,  however 
strong,  is  not  a  ground  for  a  new  trial;  at  any  rate,  in  a 
civil  case.*  More  especially  if  the  question  is  on  the  whole 
fairly  left  to  the  jury.^  As,  for  example,  a  suggestion  as 
to  the  injustice  of  the  plaintiff's  claim,  not  objected  to  at 
the  time.^  So  where  a  simple  enumeration  of  circum- 
stances leads  to  an  irresistible  conclusion  of  fact,  the  court 
cannot  be  considered  as  expressing  an  opinion  on  such 
fact,  contrary  to  law,  in  merely  making  such  enumeration, 
there  being  no  peculiar  significance  of  voice  or  manner  in 
making  it.' 

§  49.  So  the  remark  of  a  judge,  in  his  instructions,  that 
he  had  perceived  no  evidence  in  support  of  a  position 
taken  by  one  of  the  parties,  but  still  referring  it  to  the 
jury  to  settle  the  case  upon  the  evidence,  is  no  ground  for 

'  Davis  V.  .Tenney,  1  Met.  331  ;  *  Stoddard  v.  Mcllwain,  7  Rich, 

Whitou  V.  Old  Colony  Ins.  Co.,  3  535. 

Met.  1;  Curl  v.  Lowell,  19  Pick.  ^  Foster  v.  Steele,  5  Scott.  28; 

S") ;  Phillips  V.  Kingfield,  1  App.  Belcher  v.  Brithe,  4  M.  &  Sc.  SOo. 

375.  5  Gardner  v.  Picket,   10  Wend. 

2  Carroll  v.  Roherts.  23  Geo.  493.  186  ;  Grove  v.  Donaldson,  15  Penn. 

8  Pritchett  v.  Overman,  3  Iowa,  128. 

531.  7  State  v.  Noblett,  3  Jones,  418. 


288  THE   LAW    OF   NEW    TRIALS.  [ciL  XI. 

exceptions.'  So  it  is  no  ground  for  exception  that  a  jury, 
impanelled  to  try  a  prisoner  indicted  for  murder,  heard 
the  judge  charge  the  grand  jury,  that  "almost  all  the 
liomicides  committed  in  the  county  could  be  traced  to 
carrying  concealed  weapons,  and  that  it  was  high  time 
that  a  stop  should  be  i)ut  to  such  ofiences,"  and  compli- 
mented them  on  their  vigilance.^  Nor  a  positive  expres- 
sion of  opinion  that  the  ev' idence  is  sufficient  to  establish 
the  issue  for  the  plaintiff;  if  such  ojiinion  was  well 
founded.^  More  especially  if  accompanied  with  a  correct 
statement  of  the  law  applicable  to  the  case.^  As  in  case 
of  the  expression  of  an  opinion  that  no  usury  had  been 
committed,  but  leaving  it  to  the  jury  to  draw  their  own 
conclusions  from  the  evidence.'  jS'or,  in  an  action  for 
libel,  the  incorrect  statement  of  the  judge  that  there  wa8 
no  evidence  of  express  malice;  if  such  evidence  was  in- 
sufficient to  justify  a  verdict  for  the  plaintiff.^  Xor  the 
stating  a  fact  not  stated  by  counsel.'  Nor  the  statement, 
that,  in  the  opinion  of  the  judge,  there  is  not  sufficient 
evidence  to  establish  a  certain  fact,  but  the  jury  are  to 
consider  the  evidence,  and  decide  as  they  shall  find  the 
truth  to  be.^ 

§  50.  So  it  has  been  held,  that  even  a  mistake  of  a  fact, 
by  the  judge,  in  his  charge,  is  not  ground  of  new  trial." 
So,  in  an  issue  of  devisavU  vel  7ion,  the  court  will  not  re- 
mand a  cause  for  a  rehearing,  notwithstanding  the  irre- 
gularities committed  at  the  trial  by  the  judge,  in  an- 
nouncing, at  the  close  of  the  testimony,  that  his  mind 
was  fixed  and  unalterably  made  up  upon  the  merits  of 

*  Cunningham  v.  Batcheldcr,  33  ^  Solatre  v.  Melville,  1  ^Man.  & 
Maine,  31G.  li.  l'J8. 

*  Thomas  v.  State,  27  Geo.  287.  «  Remington  v.  Congdon,  2  Pick. 
»  Dean  v.  Ilewit,  5  Wend.  2r)7;     310. 

Oyster  v.  Longuecker,  IG  Peuu.  '  Sawyer  v.  Merrill,  6  Pick.  478. 
269.  *  Gardner  v.  Picket,   19   Wend. 

*  Hunt    V.    Bennett,    4    E.    U.     186. 

Smith,  647.  "  Union  Bank  v.  Sollee,  2  Strobh 

3'JO. 


CII.  Xr.]         ERRONEOUS   RULINGS   OR  INSTRUCTIONS.  289 

the  case,  and  in  arresting  the  argument  of  the  prevailing 
party,  before  its  conclusion,  with  the  remark  that  it  was 
unnecessary ;  where  the  appellate  court  are  satisfied,  from 
the  testimony,  that  justice  has  been  done;  especially  if 
the  provisions  of  the  will  in  question  furnish  intrinsic 
evidence  of  its  reasonableness,  and  the  court  and  jury,  on 
the  trial  below,  concurred  in  opinion,  both  as  to  the 
capacity  of  the  testator  and  the  fairness  of  the  will.^  So 
where  a  judge,  in  opening  his  charge,  said,  "that  he 
wished  counsel  to  take  notice  of  his  charge,  for  he  sup- 
posed the  case  would  be  taken  up,  and,  if  he  erred,  he 
could  be  corrected,  and,  if  the  jury  found  contrary  to 
evidence,  they  could  be  corrected;"  it  was  held,  that  the 
latter  part  of  the  remark  was  no  ground  for  error,  although 
inexpedient  and  improper.^  So,  under  a  statute  which  for- 
bids the  judge  to  give  an  opinion  whether  a  fact  is  fully 
proved,  but  also  requires  him  to  state  the  facts  given  in 
evidence;  the  judge  may  tell  the  jury  that  a  particular 
fact  is  proved,  if  they  believe  the  witness  who  testifies 
to  it.3 

.  §  51.  The  judge  may  properly,  in  his  charge,  make  use 
of  an  illustration.^  As,  by  a  hypothetical  case.^  Or  by 
facts  not  connected  with  the  case."  Or  express  a  mere 
speculative  opinion,  by  way  of  illustrating  any  position, 
or  in  answer  to  the  arguments  of  counsel.'^  Or  refer  the 
jury  to  their  own  knowledge  of  facts  proved,  by  way  of 
illustration.^  Or  instruct  them  to  weigh  evidence  by  the 
light  of  their  general  knowledge  and  experience  as  ap- 
plied to  the  events  and  transactions  of  life.  Though  it  is 
erroneous  to  instruct  the  jury  to  apply  special  knowledge 


'  Beall  V.  Mann,  5  Geo.  456.  ^  Masters  v.  Warren,  37  Conn. 

2  Colquitt  V.  Thomas,  8  Geo.  258.  293. 

3  Sneed  ».  Creath,  1  Hawks,  309.  'Per     Nott,    J.,    Barksdale    v. 
<  Fitz  V.  Boston,  4  Cusb.  365.  Brown,  1  N.  &  McC.  517. 

5  Melledgc    «.    Boston,    &c.,    5  «  The  King  v.  Sutton,  4  M.  &  S. 

Cush.    158;   Willis  v.   Willis,    18  533. 
Geo.  13. 

19 


290  THE    LAW    OF   NEW    TRIALS.  [CH.  XI, 

or  circumstances  connected  witli  the  case,  in  forming  their 
verdict,  unless  they  have  been  sworn  as  witnesses.^  Or 
mention  a  principle  of  law  not  applicable  to  the  evidence, 
but  connected  with  the  subjects  involved  therein.^  Or 
state  the  rule  of  damages  in  cases  somewhat  similar,  as 
not  applicable.^ 

§  52.  "We  have  already  (§  9)  considered  the  question, 
whether  an  instruction  to  the  jury  must  have  been  material^ 
in  order  to  be  ground  for  a  new  trial.  (See  chap.  3,  §§  2,  9.) 
In  the  present  connection  it  may  be  further  remarked, 
that  the  materiality  of  the  incidental  or  collateral  remarks 
objected  to  is  always  an  important  point  of  inquiry. 
"  The  court  are  always  bound,  in  the  exercise  of  a  sound 
discretion,  to  determine  how  far  the  observation  of  the 
judge  was  material,  and  affected  the  merits.  Otherwise, 
there  would  be  no  end  to  new  trials,  and  the  remedy 
would  be  worse  than  the  disease."*  Thus  it  was  held  no 
ground  of  new  trial,  that,  in  action  for  libel,  the  judge 
wrongly  charged,  that  from  a  note  of  the  author  prefixed, 
stating  the  refusal  of  another  publisher  to  print  the 
libel,  the  jury  might  presume  that  the  defendant,  the 
publisher,  had  been  backed  by  the  author  or  some  one 
else.^(a) 

'  Ottawa,  &c.  V.  Grcabam,  28  111.  *  Per  Kent,  C.  J.,  Dole  v.  Lyon, 
73.  10  John.  447  ;  Fleming  v.  Gilbert, 

2  Axtell   V.  Caldwell,  24  Peuu.     3  .Tohn.  528. 

88.  ^  Dole  V.  Lyon,  10  John.  447. 

3  ITackett  v.  B.  &c.  Railroad,  35 
N.  H.  390. 

(a)  If  on  the  trial  of  a  case  it  appears  that  it  has  been  tried  before, 
the  judge  may  properly  inquire  of  one  of  the  counsel  how  it  happens  to 
come  back  for  another  trial ;  and  if,  in  reply,  the  counsel  states  facts  not 
inquired  for,  this  will  furnish  no  ground  for  a  new  trial,  if  the  judge  con- 
ducted the  trial  with  fairness  and  impartiality.  Crosby  v.  Blanchard,  7 
Allen,  385.  The  court  is  not  bound  to  remark  upon  the  evidence  in  in- 
structing the  jury,  and,  when  it  is  done,  it  should  be  with  great  care,  and 
the  jury  should  be  told  that  such  observations  are  submitted  to  aid,  and 
not  to  control  them.     Shank  v.  State,  25  Ind.  207. 


Cri.  XT.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  291 

§  53.  While,  in  general,  mere  remarks  upon  the  facts  of 
the  case  furnish  no  reason  for  a  new  trial ;  on  the  other 
hand,  a  refusal  to  comment  upon  the  evidence  is  no  ground 
of  exception.  As,  for  example,  where  an  instruction  was 
asked  for,  which  might  have  been  understood  by  the  jury 
to  intimate  the  opinion  of  the  judge  upon  the  facts.^  Or, 
upon  a  trial  for  murder,  that  the  court  refused  to  instruct 
the  jury,  that  on  the  evidence  the  husband  of  the  person 
killed  had  an  equally  strong  motive  with  the  defendant 
to  commit  the  crime.^  So  the  court  may  refuse  to  charge 
that  certain  facts  are  strong  evidence.^  So  it  is  no  ground 
for  a  new  trial,  that  the  court  omitted  to  recapitulate  the 
evidence  in  their  charge.^ 

§  54.  Such  seems  to  be  the  prevailing  course  of  the 
decisions.  There  are,  however,  many  cases  in  the  books, 
where  it  has  been  held  that  an  intimation,  by  a  judge  to 
the  jury,  of  his  opinion  on  matters  of  fact,  is  ground  for 
a  new  trial.^  Or  (in  the  discretion  of  the  court,  though 
not  strictly  ground  of  exception)  the  expression  of  an 
opinion  upon  a  point  of  fact,  to  which  counsel  yields  with- 
out argument.^  More  especially  if  such  opinion  is  con- 
trary to  the  evidence.''  Or  if  a  judge  decides  facts  and 
inferences  which  ought  to  be  left  to  the  jury.^  Thus,  in 
a  late  case,  being  an  action  brought  by  assignees  in  bank- 
ruptcy, to  recover  the  value  of  goods  alleged  to  have  been 
fraudulently  sold  by  the  bankrupt;  a  verdict  for  the 
plaintiff"  was  set  aside  for  misdireetion.  Cresswell,  J., 
says:  "I  am  of  opinion  that  the  summing  up  of  the  Lord 

1  Riviere  «.  McCormick,  14  La.  8  Md.  44 ;  Early  v.  Garland,  13 
An.  139.  Gratt.  1 ;  State  v.  Allen,  3  Jones, 

2  Com.  V.  Domer,  4  Allen,  297.  257  ;  Wells  v.  Clements,  ib.   168  ; 

3  Bickley  v.  Biddlc,  33  Penn.  Nash  v.  Morton,  3  Jones,  3  ;  Stan- 
276.  ley  v.  Nelson,  28  Ala.  514. 

1  Rollins  V.  Varney,  2  Fost.  99.  ^  Per  Wilde,  J.,  Curl  «.  Lowell, 

5  Reel  V.  Reel,   2    Hawks,   63 ;  19  Pick.  28 ;   Davis  v.  Jenney,  1 

Foust  V.  Yielding,   28   Ala.    658 ;  Met.  221. 

Lawlcr  «.  Norris,  ib.  675 ;  Upson        ^  Davidson  i).  Stanley,  3  Scott, 

t\  Raiford,  29  ib.  188  ;  Allman  v.  49. 

Garm,  29  Ala.  240  ;  State  v.  Baker,        »  White  v.  White,  4  Dev.  257. 


292  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

Chief  Justice,  taken  literally,  was  quite  correct.  But,  at 
the  same  time,  we  are  all  of  opinion  that  there  are  one  or 
two  passages  in  it  which  may  very  well  have  been  mis- 
understood, and  that  the  jury  may  have  supposed  it  was 
intended  as  a  direction  in  point  of  law,  and  not  a  mere 
expression  of  his  Lordship's  opinion  in  })()int  of  fact."^ 
So,  in  debt  on  bond  for  $2000,  money  loaned,  the  plea  was 
non  est  factum^  and  issue  was  joined.  The  plaintiff  pro- 
duced ten  witnesses,  well  acquainted  with  the  defendant's 
handwriting,  who  testified  that  they  believed  that  his 
siirnature  was  o-enuine.  The  defendant  introduced  testi- 
mony,  to  show  that  the  plaintiff  had  not  the  ability  to 
lend  the  money.  To  rebut  this  testimony,  the  plaintiff 
introduced  a  witness,  who  testified  that  the  plaintiff'  had 
a  large  amount  of  cash  notes,  &c.,  and  had  the  control  of 
a  large  estate  as  executor.  The  defendant  offered  in  evi- 
dence the  settled  accounts  of  the  plaintiff'  as  executor,  to 
show  that  he  could  not  have  from  that  and  the  other 
source  enough  to  enable  him  to  make  the  loan ;  but  the 
court  rejected  the  evidence,  observing  that  all  the  evidence 
introduced  by  the  defendant  was  too  vague,  remote,  and 
indefinite  to  sustain  his  plea  against  the  evidence  intro- 
duced by  the  plaintiff'.  Held,  that  the  settled  accounts  of 
the  plaintiff' were  competent  testimony;  that  the  remarks 
of  the  judge  were  the  expression  of  an  opinion  on  the 
weight  of  evidence  calculated  to  mislead  the  jury;  and 
that  the  verdict  should  be  set  aside,  and  a  new  trial 
granted.'^  So,  it  is  said,  "  In  summing  up  a  cause  to  the 
jury,  even  in  a  capital  case,  the  judge  has  no  right  to  point 
out  to  the  jurors  the  strong  points  in  the  prisoner's  de- 
fence only,  and  the  weak  points  in  the  case  made  b}'  the 
people."^  And  it  has  been  sometimes  held,  that  the  ex- 
pression of  an  abstract  opinion  would  })e  ground  of  excep- 

'  Pennoll  v.  Dawsou,  18  Com.  B.        3  The  People  v.  White,  24  Wend. 
355,  3G8.  520,  per  Walworth,  Chr. 

2  McDowell    V.    Crawford,     11 
Gratt.  377. 


CIL  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  293 

tion,  if  it  might  possibly  have  an  effect  upon  the  ver- 
dict.i 

§  55.  The  court  may  properly  refuse  to  call  the  atten- 
tion of  the  jury  to  a  particular  piece  of  evidence,  by  giv- 
ing instruction  as  to  its  weight  or  proper  purposes.^  It  is 
held  that  the  court,  in  summing  up,  should  present  the 
whole  testimony,  and,  unless  that  is  done,  the  duty  had 
better  be  omitted  altogether.^  And  that  a  charge  calcu- 
lated to  mislead  the  jury,  in  their  investigation  of  the 
various  matters  in  issue,  is  erroneous,  although  by  an  ap- 
plication to  a  particular  branch  of  the  case  it  would  be 
correct.^  More  especially  where  the  court  has  sufficiently 
instructed  the  jury  on  the  law  of  the  case,  it  is  proper  to 
refuse  instructions  as  to  isolated  facts,  or  parts  of  the  evi- 
dence, which,  though  correct,  in  point  of  law,  would  give 
them  an  undue  prominence.^  Or  where  the  effect  of  such 
instruction  is  to  abridge  a  party's  rights  under  the  plead- 
ings in  the  case.  Thus,  in  a  suit  for  slaves,  claimed  by 
the  plaintiff  under  a  deed  from  the  defendant,  who  was 
an  aged  person  of  infirm  mind  and  body ;  a  witness  pre- 
sent at  the  execution  of  the  deed  testified,  that  it  was 
obtained  upon  the  plaintiff's  assurance  that  the  slaves 
should  not  be  taken  during  the  life  of  the  defendant. 
The  defendant  had  pleaded  fraud  and  imposition,  and 
mental  incapacity.  The  judge  charged  the  jury,  that,  as 
the  defendant  had  not  pleaded  a  life  estate  in  the  slaves, 
they  should  wholly  exclude  such  testimony  from  their 
consideration.  Held,  that  this  was  error,  as  it  tended  to 
divert  the  minds  of  the  jury  from  consideration  of  the 
defence  of  fraud.  Also,  that  to  charge  the  jury,  that  the 
only  question  for  their  consideration  was,  whether  the 
defendant,  "  at  the  time  of  making  the  deed  of  gift,  was 
of  sound  mind,  and  capable  of  making  a  binding  contract ; 

'  Clarke  v.  Diitclier,  9  Cow.  674.        *  Spence  v.  Onstott,  3  Tex.  147. 

2  Castro  V.  lilies,  23  Tex.  479.  5  Gray  v.  Burk,  19  Tex.  328. 

3  Johnson  v.  Kinsey,  7  Geo.  428. 


294  THE   LAAV    OF   NEW    TRIALS.  [CH.  XI. 

and  if  not,  did  she,  by  her  subsequent  acts  and  conduct, 
ratify  and  confirm"  the  deed  to  the  phiintiff;  was  erro- 
neous, for  the  same  reason, '((«) 

'  Ellis  V.  Mathews,  19  Tex.  390.     See  Cook  v.  Carr,  20  Md.  103. 

(a)  Instructions  which  amount  to  a  commentary  on  the  evidence,  giv- 
ing; particular  facts  undue  importance,  arc  erroneous.  Fine  v.  St.  Louis, 
39  Mis.  59.  So  an  instruction  which  calls  particular  attention  to  one  or 
two  of  several  facts,  entirely  insufficient  to  sustain  a  verdict.  McCartney 
V.  McMullen,  38  111.  237.  Or  an  instruction  which  singles  out  certain 
facts,  and  tells  the  jury,  if  they  believe  those  facts  to  be  true,  p?-ma/ac?'e, 
the  jilaintiff  is  entitled  to  a  verdict,  when  there  is  a  large  array  of  testi- 
mony conducing  to  the  contrary.  Chappell  v.  Allen,  38  Mis.  213  ;  Larue 
V.  Russell,  2G  Ind.  386.  Or  to  select  an  isolated  fact  either  as  proving  or 
failing  to  prove  the  point  in  question.  Grube  v.  Nichols,  36  111.  92.  Thus, 
when  the  court  instructs  a  jury  that  the  mortgagee  in  a  chattel  mortgage 
must  take  possession  in  a  reasonable  time,  it  should  also  inform  them  what 
facts,  in  reference  to  the  case  on  trial,  would  constitute  reasonable  dili- 
gence. Barbour  v.  White,  37  111.  164.  So,  in  an  action  for  the  price  of 
goods  sold  to  A.  on  the  alleged  credit  of  the  defendant,  an  instruction 
to  find  for  the  plaintiff,  if  the  jury  should  believe  from  the  evidence  that 
the  goods  were  sold  on  the  credit  of  the  defendant  by  his  arrangement, 
is  erroneous,  for  omitting  to  add  that  they  must  find  that  such  goods  had 
not  been  paid  for.  Hovey  v.  Thompson,  37  111.  538.  So  in  an  action  to 
recover  money  claimed  to  have  been  loaned  to  the  defendant,  if  there  is 
any  legal  evidence  tending  to  show  that  a  payment  to  one  A.  was  a  loan 
to  the  defendant,  although  made  without  the  latter's  assent,  it  is  error 
to  charge  the  jury  that  if  the  money  was  paid  to  A.  without  the  defend- 
ant's assent  there  was  no  loan.  Clark  v.  McGraw,  14  Mich.  139.  A 
direction  to  the  jury,  that,  in  case  they  found  that  the  draft  sued  on  had 
been  altered,  the  plaintiff  could  not  recover  unless  he  explained  the  alter- 
ation, is  erroneous,  when  the  draft  shows  no  alteration.  Patten  v.  Newell, 
30  Geo.  271.  A  new  trial  was  granted,  where  the  court  instructed  the 
jury,  in  an  action  against  a  railroad  for  running  over  the  plaintiff,  that, 
if  they  believed  the  injury  was  wilfully  or  recklessly  done  they  might 
give  exemplary  damages  ;  there  being  no  evidence  of  recklessness,  wan- 
tonness, or  gross  negligence.  Kennedy  v.  North,  36  Mis.  351.  In  a  suit 
against  a  railroad  for  running  over  a  horse,  when  there  is  proof  that  the 
engineer  did  not  blow  the  whistle  or  ring  the  bell  as  required  by  the  sta- 
tute, which  provides  that  the  company  shall  be  liable  for  any  damage 
occasioned  by  a  failure  to  comply  with  the  statute,  but  there  is  no  evi- 


en.  XI.]        ERRONEOUS  RULINGS   OR   INSTRUCTIONS.  295 

§  56.  It  is  the  general  and  necessary  inference  from  the 
foregoing  several  propositions,  but  still  requires  to  be  more 
fully  and  specifically  explained,  that  the  instructions  given 
or  withheld  are  of  course  to  be  predicated  upon  the  evi- 
dence.\a)     A  new  trial  will  not  be  granted,  for  a  refusal 

'  Herndon  v.  Bryant,  39  Miss.  335;  283  ;  Karrigcr  v.  Grebb,  42  Mo.  44 ; 

Oliver  v.  State,  ib.  52(5 ;  Cothran  v.  Brownfield  v.  Brownficld,  4:1  111. 

State,  ib.  541  ;  Dickerson  y.  Jobn-  147  ;  American  v.  Parsons,  44  ib. 

son,  24  Ark.  251;  Jeffersonville  R.  312  ;  Hite  v.  Blandlbrd,  45  ib.  9; 

R.  Co.  V.  Swift,  26  Ind.  459  ;  King  Bartholomew   v.    Merchants',     25 

v.  King,  37  Geo.  205  ;  Pleasants  v.  Iowa,  507  ;   IMcLaren   v.   Hall,  26 

Scott,    21    Ark.   370 ;   Latshaw   v.  ib.  297  ;   Miildrow  v.  Caldwell,  14 

Territory,   1  Oreg.  140 ;   Miles  «.  Mis.    523 ;     McCov    v.    State,    15 

Douglas,  34   Conn.  393;    Hill  v.  Geo.   205;   Gardner  v.    Clark,    17 

Canfield,  56  Penn.  454  ;  Pbiladel-  Barb.  538  ;    Garnett  v.  Holloway, 

phia  V.  Harper,  29  Md.  330  ;  Har-  24  Ala.  376  ;  Edelin  v.  Sanders,' 8 

vey  V.   Skipwith,    16   Gratt.   393  ;  Md.  118;  Gaither  v.  Myrick,  9  ib. 

State  v.  McCurry,  63   N.  C.  33;  118;  Von  Pliul  v.  Moffit,  13  Mis. 

Jemisoni).  Bearing's  Ex'rs,  41  Ala.  286;   Greely  v.  McNabb,  ib.  596; 

dence  that  the  engineer's  failure  in  this  respect  caused  the  damage  in 
question ;  it  is  error  to  instruct  the  jury,  that,  if  they  believe  the  evi- 
dence, they  must  find  for  the  plaintiff.  Memphis  v.  Bibb,  37  Ala.  699. 
A  prayer  for  an  instruction  to  the  jury,  iu  a  suit  in  which  a  release  was 
set  up  in  defence,  "  that,  if  they  find  from  the  evidence,  the  said  release 
not  being  under  seal,  that  before  or  at  the  time  of  the  date  of  the  release 
the  releasor  received  no  valuable  consideration  from  the  releasee  or  ser- 
vices of  value  from  him,  they  may  find  the  said  release  to  be  fraudulent," 
is  calculated  to  mislead  the  jury,  the  words  "not  being  under  seal"  being 
used  to  negative  the  presumption  of  consideration,  of  which  the  receipt 
is  prima  facie  evidence.  There  being  no  evidence  to  rebut  the  prima 
facie  proof  of  consideration,  the  prayer  had  no  evidence  to  support  it, 
and  was  therefore  properly  rejected.  Blackburn  v.  Beall,  21  Md.  208. 
When  the  presumption  of  ownership,  arising  from  possession  of  personal 
property,  is  rebutted  by  other  evidence,  it  is  error  merely  to  instruct  the 
jury  that  possession  is  prima  facie  evidence  of  ownership.  Bergen  v. 
Riggs,  34  111.  170.  A  prayer  offered  by  defendants,  who  were  sued  as 
partners,  segregating  two  instances  or  transactions  testified  to  and  men- 
tioned in  the  prayer,  tending  to  negative  a  partnership,  and  asking  the 
instruction  of  the  court  thereon,  and  excluding  from  the  jury  other  evi- 
dence which  might  have  induced  the  plaintiff"  to  believe  the  defendants 
were  partners,  is  calculated  to  mislead  the  jury.  Folk  v.  Wilson,  21  Md. 
538. 

(a)  It  is  immaterial  whether  a  fact  is  proved  or  admitted.  Walker  v. 
Wootten,  18  Geo.  119.     It  is  not  error  to  assume  that  as  true  which  the 


296  TUE    LAW    OP   NEW    TRIALS.  [CII.  XL 

of  instructions  based  upon  no  evidence  in  the  case.^     Or 
of  instructions  assuming  a  fact  not  proved.^     ITor  because 


Kirkland  v.   Oatcs,  25  Ala.   465;  Kirker,  4   Tex.    252;   Wheeler  v. 

Dunlap  V.   I?ol)inson,  28  il).   100;  IMcxnly,  9  il).  ;{72 ;  McGreal  ®.  Wil- 

Troat  V.  Lord,  42  ISIaine,  552;  Ilnn-  son,   ib.  420  ;  Kelso  v.  Townsend, 

newell  v.  llobart,  \h.  565  ;  IVIartin  1:5  ib.  140  ;  IJrown  i\  State,  28  Geo. 

),'.  The  People,  i;3  111.  841  ;  ^lelii-  199;  Willis  v.  Bullitt,  22  Tex.  330 ; 

tyre  v.  Kline,  oO  Miss.  361  ;  Adams  State  v.  Iloss,  29  Mis.  32  ;  Daniel  v. 

V.  The  Governor,  22  Geo.  417;  Peo-  Johnson,  29  Geo.  207  ;  Johnson  v. 

pie  r.  Roberts,  6  Cal.  214  ;  Hale  v.  State,  26  il).  611  ;  Brown  v.  Cocke- 

Darter,  10  Humph.  92  ;  AVendell  v.  rell,  33  Ala.  38 ;  State  v.  Cain,  2 

Moulton,  6  Fost.  41  ;  McDougal  v.  Jones,  201  ;  Jones  v.  State,  13  Tex. 

Bellamy,  18  Geo.  411;  Central,  &c.  168  ;  Linscott  v.  Trask,  35  Maine, 

V.  Hines,  19  ib.  203;  Owenw.  Chand-  150  ;  Galena,  &c.  v.  Jacobs,  20  111. 

ler,  16   Ark.  651  ;  Yarborough  v.  478 ;  Harrison  v.  Cachelin,  27  Mis. 

Tate,  14 Tex.  483;  Petersons.  Elli-  26;   Bethune  v.  McCrary,  8  Geo. 

cott,  9  Md.   52  ;  Franklin,  &c.  v.  114. 

Cooper,  39  Maine,  542;  Cilley  v.  »  Pierce  «.  Negro,  &c.,  6  Md.  28. 

Bartlett,  19  N.  II.  312 ;  Mollitt  v.  2  Chaffin  v.  Lawrence,  5  Jones, 

Cressler,  8  Clarke,  122  ;  Andrews  v.  179  ;  30  Ala.  253. 
Smithwick,  20  Tex.  Ill;  Crozier  v. 


defence  has  treated  as  true ;  as  where  a  prisoner,  indicted  for  murder, 
relies  solely  on  the  ground  that  he  is  not  guilty  of  the  homicide,  and  does 
not  pretend  that,  if  guilty  of  the  homicide,  he  is  guilty  of  anything  Init 
murder.  The  State  v.  Rash,  12  Ired.  382.  The  court  may  tell  the  jury, 
that  if,  from  the  evidence,  they  believe  certain  facts  are  proved,  certain 
legal  consequences  must  follow ;  and  that  the  law,  as  applied  to  the  facts 
so  established,  is  for  the  plaintiff  or  defendant  (as  the  case  may  be),  and 
that  they  must  find  accordingly.  Baltimore  v.  Skeels,  3  W.  Va,  556. 
If  a  charge,  when  applied  to  the  evidence,  is  erroneous,  a  new  trial 
should  be  granted,  though  the  party  does  not  ask  the  court  to  give  a 
contradictory  charge.  Lochrane  v.  Solomon,  38  Geo.  286.  An  instruc- 
tion to  the  jury  that  they  shoidd  be  governed  by  a  preponderance  of  evi- 
dence, and  that  they  had  no  right  to  allow  anything  to  influence  their 
minds  except  the  evidence  and  the  law  as  given  by  the  court,  is  proper. 
Preston  v.  Walker,  26  Iowa,  205.  Where  an  instruction  is  asked  upon 
a  question  concerning  which  there  is  no  direct  evidence,  yet,  if  there  is 
any  proof  tending  to  establish  it,  it  should  be  given,  as  the  party  is  en- 
titled to  the  benefit  of  any  inferences  from  the  testimony.  Peoria  v. 
Anapow,  45  111.  86.  In  an  action  against  executors,  where  the  plaintiffs 
claimed  under  an  order,  which  they  alleged  the  testator  had  promised  to 
pay,  but  his  declarations,  as  given  in  evidence,  showed  no  acceptance  of 
the  order  or  promise  to  pay  the  sum  named  in  it ;  it  was  error  to  instruct  the 
jury,  in  a  way  which  implied  that  the  declarations  could  not  be  accounted 


CH.  XI.]        ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  297 

the  court  instructed  the  jury,  that,  if  they  believed  from 
the  evidence  that  the  plaintiff  had  proved  the  facts  set 
out  in  her  declaration,  they  ought  to  find  for  hcr.^  Or 
refuse  to  charge  the  jury  to  find  for  the  plaintiff,  if  from 
the  testimony  they  believe  a  certain  fact,  where  there  is  no 
sufficient  evidence  to  prove  that  fact.^  Or  disregard  in- 
competent evidence,  though  not  expunged.^  Or  for  an 
instruction  based  upon  any  evidence."  On  the  other  hand, 
a  new  trial  will  be  awarded,  when  the  court  refuses  to  give 
a  legal  charge,  for  the  reason  that  there  is  no  evidence  to 
support  it,  when,  in  fact,  there  is  such  evidence.^  So 
where  the  evidence  is  all  on  one  side,  and  is  sufficient 
to  authorize  a  verdict,  it  is  no  invasion  of  the  province 
of  the  jury  for  the  judge  so  to  instruct  them.''    While, 


>  Clemens  v.  Collins,  14  Mis.  604.  s  Cook  i\  Wood,  30  Geo.  891. 

2  Hatch  V.  Garza,  22  Tex.  170.  «  Reid  v.  Rcid,  11  Tex.  585  ;  Ni- 

*  Durgin  v.  Ireland,  4  Kern.  322.  chols  v.  Goldsmith,  7  Wend.  IGO; 

<  Everett  v.  Whitfield,  27  Geo.  Wintz  «.  Morrison,  17  Tex.  372 ; 

183.  Bond  v.  Mallow,  ib.  636. 


for,  under  any  other  hypothesis  than  his  liability  for  the  amount  of  the 
order.  Bogle's  v.  Kreitzer,  46  Penn.  465.  A  judge  may  refuse  to  charge 
upon  the  effect  of  a  given  state  of  facts,  which  are  in  dispute.  Thus,  in 
an  action  for  injuries  received  from  collision  with  a  railroad  train,  he  may 
refuse  to  instruct  the  jury  that  there  was  no  evidence  that  the  accident 
was  caused  by  the  sole  negligence  or  want  of  care  of  the  defendants,  and 
therefore  the  verdict  must  be  in  their  favor.  Philadelphia  v.  Hagan,  47 
Penn.  244.  Where  a  receipt  in  full  of  one  of  two  partner  plaintiffs  is 
offered  in  evidence  by  the  defendants,  relating  to  the  subject-matter  of 
the  suit,  it  is  error  in  the  charge,  to  lead  the  jury  to  inquire,  whether  the 
receipt  was  not  applicable  to  some  other  claim,  where  no  evidence  of  any 
such  claim  has  been  given.  Bogle's  v.  Kreitzer,  46  Penn.  465.  Where  a 
sentence  in  the  general  charge  contained  several  statements  which  had 
not  been  proved  by  any  direct  evidence,  but  the  facts  had  not  been  con- 
troverted, but  had  apparently  been  assumed  to  be  true  by  both  parties, 
and  there  was  no  specific  objection  to  either  of  those  statements  or  to  the 
sentence  containing  them,  but  only  a  general  objection  to  a  large  part 
of  the  charge  in  which  that  sentence  occurred  with  others  that  were  free 
from  error;  held,  the  judgment  would  not  be  reversed.  Morse  v.  Oilman, 
18  Wis.  373. 


298  TUE   LAAV    OF   NEW   TRIALS.  [CH.  XI. 

on  tlie  other  hand,  a  request  to  instruct  the  jury,  in  a  case 
where  the  evidence  was  conflicting,  tliat,  if  they  believed 
the  testimony  of  A.  and  B.,  they  must  find  for  the  defend- 
ants, was  properly  refused.^  So  a  new  trial  will  not  be 
granted,  for  an  instruction  to  find  a  verdict  for  the  de- 
fendant, if  there  is  no  evidence  or  insufficient  evidence 
for  the  plaintift'.-  Or,  as  to  the  tendency  of  evidence,  that 
it  has  no  tendency  for  the  plaintiff,  this  being  matter  of 
law.3  (See  §  41.)  ISTor  that  the  instruction  draws  a  legal 
conclusion  from  facts  proved.^  The  judge  is  bound  to 
state  the  legal  result  of  the  evidence  of  a  party,  if  be- 
lieved.^ And  to  apply  the  law  to  the  facts  as  ascertained 
by  the  evidence.  It  is  error  to  submit  a  case  to  the  jury, 
with  directions  to  find  as  they  may  think  right  and  proper 
between  the  parties.^  Thus  when  one  of  the  questions  at 
issue  is,  whether  a  certain  person  was  an  authorized  agent 
in  a  certain  transaction,  any  instruction,  which  withdraws 
or  excludes  from  the  consideration  of  the  jury  facts  from 
which  such  authority  might  be  inferred,  is  erroneous.''  So 
an  instruction  should  be  held  right,  if  it  would  produce 
the  proper  results  upon  the  facts  of  the  case,  whether 
technically  accurate  or  not.  Thus,  where  the  jury  were 
instructed,  that  "  a  deed,  which  contains  certain  conditions 
subsequently  to  be  performed  by  the  purchaser,  is  void  if 
he  should  fail  or  refuse  to  perform  those  conditions ;"  such 
instruction,  though  not  strictly  correct,  was  held  not  erro- 
neous, when  ai)i>lied  to  the  evidence.^  While,  on  the  other 
hand,  although  an  instruction  pursues  almost  literally  the 
words  of  a  statute,  yet,  if  it  fail  to  furnish  such  an  expo- 
sition of  its  meaning  and  intent  as  the  circumstances  and 


>  Lawrencebnrg,  &c.  v.  Montgo-        ^  ciark  v.  Tabor,  2  Wms.  223. 
mcrv,  7  Ind.  474.  «  Kuckersville,  &c.  v.  Hemphill, 

''  Morris  v.  Brickley,  1  liar.  &  G.  7  Geo.  396  ;  Griffin  v.  The  State,  15 

107.  ib.  476. 

3  Garnctt  v.  Kirkliam,  33  Miss.        ^  Doan  ».  Duncan,  17  111.  272. 
389  *  Thompson  ». Thompson,  9  Ind. 

«  Qiiin  V.  Wright,  10  Tex.  317.  323  ;  Ivey  v.  Owens,  28  Ala.  141. 


CH.  XI.]        ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  299 

facts  before  the  jury  demand,  it  is  erroneous. X«)  And, 
where  the  evidence  will  not  warrant  a  peremptory  ruling  on 
a  point,  a  judge  is  not  required  to  express  an  opinion,  much 
less  to  charge,  on  such  point.^  And  it  is  error  to  mislead 
the  jury,  by  directing  their  attention  to  a  point  on  which 
there  is  no  evidence.^  So  it  is  ground  of  new  trial,  where 
there  was  no  evidence,  that  the  case  was  left  to  the  jury 
at  all.*  So,  if  there  is  no  opposing  evidence  whatever  on 
the  question  at  issue,  it  is  the  duty  of  the  court  to  direct 
the  jury  for  whom  a  verdict  shall  be  found.^  Thus,  though 
partial  failure  of  consideration  may  be  shown  under  a  plea 
of  total  failure,  yet,  where  there  is  no  evidence  at  all  of  a 
partial  failure,  it  is  not  a  matter  of  comiilaint,  that  the 
jury  were  instructed  to  find  for  the  plaintiff,  unless  they 
are  satisfied  that  there  was  a  total  failure.^  So  where  the 
judge  instructed  the  jury,  that,  if  they  believed,  &c.,  they 
must  find  a  verdict  for  the  defendant,  wherever  the  mat- 
ter occurred  ;  and  there  was  no  averment  in  the  petition, 
under  which  evidence  would  have  been  admissible  to  have 
shown  that  such  matter  occurred  out  of  the  State;  and 
the  instruction  was  correct  when  confined  to  the  State : 
held,  there  was  no  error.^  So,  in  an  action  for  services 
■rendered  in  a  vessel,  the  defence  was  set  up,  of  incompe- 
tency in  the  plaintiff  to  perform  such  services,  and  evi- 
dence relating  to  this  point  was  offered  on  both  sides. 
The  judge  charged,  that  upon  the  evidence  the  question 
of  competency  was  immaterial,  but  the  exceptions  did  not 

'  Ritte  V.  Com.,  18  B.  Mon.  35.  "»  Dula  v.  Cowles,  4  Jones,  519  ; 

2  Moore  v.  Meacham,  10  N.  Y.  Wakefield  v.  Smithwick,  ib.  327. 
(6  Seld  )  207.  ^  Haynes  v.  Thomas,  7  Ind.  38. 

3  Snyder  v.  Wilt,  15  Penn.  59.  ^  Willis  v.  Bullitt,  23  Tex.  330. 

7  Norvell  v.  Oury,  13  Tex.  31. 

(a)  An  instruction  is  not  erroneous,  because  the  statement  of  what 
constitutes  a  suEBcient  testamentary  capacity  in  the  terms  of  the  (^Id.) 
act  of  1798,  c.  101,  sub-c.  1,  §  3,  is  followed  by  an  explanation  of  their 
legal  meaning  and  effect,  consistent  with  the  clause  itself,  and  so  clear 
and  explicit  that  it  could  not  have  confused  or  misled  the  jury.  Colviu 
V.  Warford,  20  Md.  357. 


300  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

show  any  evidence  wliicli  should  have  this  effect.  Held, 
a  new  trial  should  he  granted.^  So  wliere  there  was  a 
conflict  of  testimony  as  to  the  cause  of  a  nuisance,  and  the 
court  directed  the  attention  of  the  jury  to  a  cause  which 
did  not  appear  in  evidence,  and  was  impossihlc  from  the 
nature  of  the  case.^  So,  in  a  suit  against  underwriters,  to 
recover  a  loss  of  bank  bills,  on  a  policy  covering  a  cer- 
tain amount  of  "property"  on  board  a  vessel,  the  judge 
instructed  the  jury  that,  in  the  absence  of  fraud,  the 
amount  insured  had  some  slight  tendency  to  prove  the 
amount  of  bills  on  board.  Held,  that  this,  being  only  a 
remark  upon  the  state  of  the  evidence,  was  not  a  ground 
of  exception.^  So  in  a  suit  against  the  drawer  of  a  bill 
drawn  for  his  accommodation,  the  defence  was,  that  the 
bill  had  been  altered,  so  as  to  be  payable  in  sixty  days, 
instead  of  six  days,  and  the  only  evidence  of  alteration 
was  on  the  face  of  the  bill.  The  judge,  after  instructing 
the  jury  that  the  question  was  to  be  decided  upon  inspec- 
tion, also  instructed  them  to  consider  the  probability  or 
improbability  that  an  accommodation  bill  would  be  made 
payable  in  six  days.  Held,  that  no  exception  could  be 
taken  to  the  last  instruction,  it  being  founded  upon  the 
evidence,  as  the  jury  were  to  consider  it."*  So  a  new  trial 
will  not  be  granted,  for  refusal  to  instruct  as  to  the  effect 
of  an  admission  in  answer  to  the  statute  of  limitations ; 
no  such  admission  being  made.^  So  a  new  trial  was 
granted,  where,  in  an  action  for  expenses  incurred  in  the 
care  of  the  plaintiff's  son,  injured  by  the  defendant's 
negligence,  and  for  loss  of  his  services,  no  evidence  was 
offered  upon  the  latter  point,  but  the  judge  charged  that 
the  plaintift'  might  recover  therefor." 


•  Crouclier  v.  Oakman,  1  Allen,  *  Davis  v.  Jenney,  1  Met.  221. 
404.  ^  Penley^j.Watcrhouse,  3  Clarke, 

2  Bovard  i>.  Christy,  14  Penn.  418. 

2G7.  ^  Castanos  v.  Ritter,  3  Duer,  370. 

*  Whiton  V.  Old  Colony  Ins.  Co., 
2  Met.  1. 


CII.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  301 

§  57.  It  is  but  anotlicr  form  of  stating  the  same  general 
proposition  to  add,  that  an  instruction  assuming  a  fact  is 
erroneous. '(«)     Though  the  evidence  tends  to  prove   it.^ 

'  Donmcad^).  (^oburn,15Mcl.  29;  j^omery  v.    Erwin,  24   Ark.    540; 

Tificld   ('.  Adams,  ',i   Clarke,  487 ;  Miles  v.  Douglas,  34  Conn.  393  ; 

Homes  V.  Carver,  ib.  257  ;  Wall  v.  Peoria  v.  Anapow,  4.5  111.  80. 

Goodenoiiiili,  IG  111.  415;  Duffleld  2  McDougald  v.  Rutherford,  30 

V.   Delaucey,   30    ib.    258 ;    Mont-  Ala.  253. 

(a)  A  refusal  to  instruct  the  jury,  that  the  facts  assumed  in  several 
points  of  the  plaintiffs  prove  the  positions  contended  for,  is  not  error,  if 
there  are  other  facts  in  evidence  not  noticed  in  the  points,  which  are 
necessary  to  be  considered ;  especially  where  the  whole  is  referred  to  the 
jury,  with  instructions  that  the  assumed  facts  would  prove  what  is  con- 
tended for,  were  it  not  for  the  other  facts.  Gratz  v.  Beates,  45  Penn. 
495.  The  court  should  refuse  instructions,  which  assume  a  fact  concern- 
ing which  evidence  has  been  produced.  Preston  v.  Keys,  23  Cal.  193. 
The  existence  of  matters  in  dispute  should  not  be  assumed  in  the  in- 
structions. Merritt  v.  Given,  34  Mis.  98.  An  instruction  may  assume 
that  a  fact  is  proved  which  is  fully  established  by  the  proof,  and  about 
which  there  is  no  contradiction  in  the  evidence.  Lamar  v.  Williams,  39 
Miss.  342  ;  Hughes  v.  Monty,  24  Iowa,  499.  Where  a  party  by  his  own 
admissions  or  proof  shows  facts,  and  the  court  is  then  asked  to  make  a 
ruling  on  them  against  him,  it  may  assume  the  facts  to  be  true.  Waters 
V.  Riggin,  19  Md.  536.  A  request  to  charge,  made  upon  a  false  assump- 
tion of  what  the  evidence  tends  to  prove,  is  properly  refused.  Barron 
V.  Fay,  38  Vt.  705.  Upon  the  trial  of  an  indictment  for  assault,  the 
jury  inquired  whether  they  should  consider  the  assault  made  upon  the 
defendant  by  the  person  he  was  on  trial  for  assaulting.  Held,  the  reply 
of  the  court,  that  it  could  not  assume  that  any  such  assault  had  been 
made,  and  that  the  question  of  fact  was  with  them,  was  correct.  People 
V.  English,  30  Cal.  214.  Where  a  judge,  in  his  instructions,  erroneously 
assumes  that  there  is  no  dispute  concerning  a  certain  question  of  fact, 
the  error  should  be  corrected  by  calling  his  attention  thereto,  and  not  by 
exception.  Ilofimau  v.  iEtna,  1  Rob.  (N.  Y.)  501.  An  instruction,  that 
the  plaintiff  is  "  entitled  to  recover  in  this  action  all  damages  proved  to 
have  been  sustained  by  him  on  account  of  the  trespasses  committed  by 
the  defendant  on  the  plaintiff's  premises,  as  alleged  in  the  declaration," 
is  erroneous,  because  it  assumes  that  the  defendant  committed  the  tres- 
passes, and  that  the  only  question  for  the  jury  is  the  amount  of  damages. 
Small  V.  Brainard,  44  111.  355.  Where,  in  an  action  of  trespass,  v/  et 
armis,  the  court  instructed  the  jury,  that,  in  making  up  their  verdict, 
they  might  take  into  consideration  the  pecuniary  condition  of  the  de- 


302  THE    LAW    OF   NEW    TRIALS.  [Cll.  XI. 

Or  thoiidi  <lonc  hypothetic  ally}  Thus  an  instruction,  that, 
if  the  phiintiif's  evidence  of  a  particuLir  fact  is  not  suc- 
cessfully contradicted,  the  jury  must  find  for  him;  because 
it  assumes  that  such  evidence  proves  the  fact.^  So,  assum- 
ing, in  the  charge,  a  boundary  not  proved,  is  ground  of 
new  trial.3  Or  that  certain  words  under  the  signature  to 
a  note  were  written  when  it  was  executed,  and  were  a 
part  of  the  signature.^  So,  where  one  sued  as  lessee  of  a 
patent  defended  as  purchaser,  and  the  title  to  the  patent 
was  the  point  in  issue;  held,  the  instructions  were  wrong 
in  assuming  that  the  title  was  in  the  plaintiff,  that  he  had 
proved  the  erection  of  a  machine  in  the  defendant's  shop 
and  used  it,  and  that  the  burden  of  proof  was  on  the  de- 
fendant.* So  a  new  trial  was  granted,  where,  in  a  ques- 
tion upon  the  validity  of  a  will,  the  judge  put  the  case 
to  the  jury  to  find  whether  the  testatrix  was  unduly  in- 

>  Craighead  v.  Wells,   21    Mis.  ^  Burr  v.  Williams,  20  Ark.  171. 

404.  5  Whipple  v.  Wing,   39   Maine, 

2  Dunlap  v.  Hearn,  37  Miss.  471.  424. 

3  Kipp  V.  Den,  4  Zabr.  854. 

fendants,  and  their  ability  to  pay  the  verdict  that  might  be  rendered 
against  them;  the  instruction  was  held  erroneous,  because  it  assumed 
that  the  jury  would  find  a  verdict  for  the  plaintiff,  and  it  was  calculated 
to  mislead  the  jury.  Hawk  v.  Kidgway,  33  111.  473.  The  court,  in  an 
action  against  a  railway  company  for  running  over  the  plaintiff's  horses 
and  wagon,  at  the  request  of  the  plaintiff,  submitted  to  the  jury  the  fol- 
lowing interrogatories:  1st.  "Was  not  the  defendant  guilty  of  negli- 
gence in  placing  the  freight  car  on  the  side  track  on  the  street,  thereby 
obstructing  the  same  ?  2d.  Was  not  the  defendant  guilty  of  negligence 
in  not  placing  some  visible  signal  to  indicate  the  approach  of  the  back- 
ing train  ?"  To  each  of  which  questions  the  jury  answered  "  Yes."  Held, 
that  the  interrogatories  were  not  within  the  (Ind.)  statute,  and  should 
not  have  l)ecn  submitted  to  the  jury,  because  they  do  not  ask  a  finding 
on  any  particular  matters  of  fact,  but,  assuming  certain  facts,  ask  the 
jury  to  pronounce  upon  the  question  of  negligence,  as  a  conclusion  of  law 
from  the  facts  assumed.  Toledo  v.  Goddard,  25  Ind.  185.  An  instruc- 
tion to  the  jury,  that,  if  the  defendant  did  certain  acts  specified,  they 
should  infer  a  fraudulent  intent,  is  not  open  to  the  objection  that  it  as- 
sumes that  these  acts  are  established.     State  v.  Thompson,  19  Iowa,  299. 


Cir.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  303 

jiuenced  by  the  plaintiff;  no  evidence  having  been  oft'ered 
of  what  the  law  regards  as  undue  influence.  Strong,  J., 
remarks:  "Unless,  therefore,  there  was  some  evidence 
tending  legitimately  to  prove  that  some  fraud  had  been 
practised  upon  the  testatrix  at  that  time"  (the  making  of 
the  will),  "  or  that  some  misrepresentation  had  then  been 
made,  or  that  some  physical  or  moral  coercion  had  been 
employed,  such  as  to  destroy  her  free  agency,  the  court 
erred  in  submitting  to  the  jury  the  question  Avhether  un- 
due influence  had  been  exerted.  It  was  inviting  them  to 
find  as  a  fact  that  of  which  there  was  no  evidence,  and 
which  the  law  as  well  as  reason  presumed  had  no  exist- 
entse. — The  fact,  if  it  was  a  fact,  that,  months  after  the  will 
was  made  which  appointed  him  executor,  he  exercised 
control  over  her  affairs,  and  even  over  herself,  daring  her 
advanced  age,  unconnected  as  it  was  with  the  testamentary 
act,  was  no  evidence  from  which  the  jury  could  infer  that 
the  will  was  not  her  own."'(o)  So  a  new  trial  will  be 
granted,  for  an  instruction  which  leaves  the  jury  to  draw 
an  incorrect  inference  from  facts  material  to  the  issue.^ 
Or  which  itself  draws  an  inference  of  fact.^  So  if  the 
court  draw  inferences  from  the  evidence,  or  determine 
what  it  does  or  does  not  prove,  in  a  manner  calculated  to 
mislead  the  jury.*  (See  §  42.)  So  if  the  judge,  in  his 
charge,  makes  a  qualification,  which  is  not  authorized  by 
the  evidence.^  So  if  the  judge  submit  to  the  jury  a 
hypothesis  wholly  unwarranted  by  the  evidence,  a  new 
trial  will  be  granted.     As  where  the  plaintiff",  the  losing 

>  Eckert  v.  Flowry,  43  Penn.  46,  ^  Earnest.  Blackbart,  13  111.  195. 

51,  52.  5  Gale   v.   Wells,    13   Barb.    84. 

2  Hastings  v.  Bangor,  &c.,  6  See  Flemming  v.  Marine,  &c.,  4 
Shep.  436.  Wliart.  59. 

3  Easterling  v.  State,  30  Ala.  46. 

(a)  But,  on  the  other  hand,  a  new  trial  will  be  granted  if,  under  a  state 
of  facts  from  which  the  law  would  infer  undue  influence,  the  judge,  in 
his  charge,  leaves  it  to  the  jury  to  infer  or  disbelieve  the  existence  of 
such  influence.     Gale  v.  Wells,  12  Barb.  84. 


304  THE   LAW    OF   NEW    TRIALS.  [CII.  XI. 

partv  in  a  wager,  immediately  after  the  result  was  as- 
certained, ordered  the  defendant,  the  stakeholder,  to  pay 
over  the  money  to  the  winner,  under  which  circumstances 
the  iilaintifl"  had  a  clear  right  to  recover  it  I'rom  the  de- 
fendant, though  actually  paid  over.  But  the  judge  charged 
the  jury,  in  part,  that  if  by  the  above  order  the  plaintift' 
intended  to  have  the  money  paid  over  as  a  gratuity^  the 
verdict  should  be  for  the  defendant.^  So  where  the  plain- 
tifi'  proved  the  execution  of  the  notes,  upon  which  the 
suit  was  brought,  and  the  defence  of  usury  was  set  ufj', 
but  no  evidence  in  support  of  it  was  given;  and  the  judge, 
after  a  correct  exposition  of  the  law  of  usury,  as  appli- 
cable to  the  case,  told  the  jury,  that  "  it  was  for  them  to 
determine  from  the  evidence  whether  such  unlawful  in- 
terest had  been  contracted  for,  and  if  they  found  that  it 
was,  their  verdict  should  be  for  the  defendant,  if  not,  for 
the  plaintiff."^  So  where,  in  an  action  of  trespass  for  a 
wrongful  levy,  the  execution  had  been  erroneously  ex- 
cluded from  the  jury,  instructions  relating  to  the  validity 
of  the  execution  were  out  of  place,  having  nothing  to  rest 
on.'  So  an  instruction,  "  that,  if  A.  E.  promised  to  pay 
the  debt  of  C.  D.,"  &c.,  is  wrong,  in  assuming  C.  D.'s  in- 
debtedness.'' So,  in  a  suit  for  a  breach  of  warranty  of 
beef,  an  instruction  to  the  jury,  that,  if  they  believe  the 
beef  to  have  been  deposited  with  the  plaintiff  to  be  sold 
for  the  defendant,  they  must  find  for  the  defendant,  is 
erroneous,  because  it  makes  no  reference  to  the  terms  on 
wliich  the  deposit  may  have  been  made.-^ 

§  58.  Substantially  the  same  principle  is  expressed  in 
the  rule,  that  no  exception  lies  to  a  refusal  to  give  an 


'  Storey  V.  Brcnuan,  15  N.  Y.  (1  ^  Atkinson  v.  Gatchcr,  23   Ark. 

Smith)  534;  State  v.  Harrison,  5  101. 

Jones,  115.  *  Cropper  ?'.  Pittman,  13  IMd.  190. 

2  Fay    V.    Grimsteed,    10   Barb.  ^  Beall  v.  Pcarrc,  12  Mel.  550. 
331. 


CH.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  305 

abstract  instruction.Xa)  Especially  if  the  part  applicable 
Las  already  been  given.^  Or  refusal  of  inap]plicable  instruc- 
tions, though  abstractly  correct.^  Or  a  refusal  to  instruct 
the  jury,  that,  if  they  believe  there  is  no  evidence  of  a 
fact,  of  which  there  is  some  evidence,  they  will  acquit. '' 
(See  §  9.) 

§  59.  After  a  mass  of  evidence  relating  to  an  account,  a 
settlement  between  the  parties,  and  a  subsequent  arbitra- 
tion, the  court  was  requested  to  charge  that  there  was  no 
evidence  of  fraud  or  mistake.  Held,  the  refusal  so  to 
charge  was  not  error.^ 

§  60.  A  judge  may  speak  of  things  as  facts,  where  they 
are  treated  as  facts  in  the  progress  of  the  trial,  and  are  not 

1  Bnrrell  v.  State,  18  Tex.  713  ;        ^  Gover  v.  Dill,  3  Clarke,  837  ; 
Fowler  v.  Smith,  2  Cal.  39  ;  Ben-  Harrison  v.  Morton,  2  Swan,  461. 
liam  V.  Rowe,  ib.  387.  "  Bnrrell  v.  State,  18  Tex.  713. 

2  Faircbild  v.  California,  «fcc.,  13  ^  Dingee  v.  Jackson,  23  Penn, 
Cal.  599.  176. 

(a)  An  abstract  instruction  founded  upon  any  evidence  is  not  erro- 
neous. McNeill  V.  Arnold,  22  Ark.  477.  On  the  other  hand,  instruc- 
tions should  be  framed  with  reference  to  the  circumstances  of  the  case,  and 
not  be  expressed  in  abstract  and  general  terms.  Chicago  v.  Utley,  38  111. 
410.  The  instructions  are  to  be  considered  and  construed  in  connection 
with  and  in  reference  to  the  evidence.  Hooksett  v.  Amoskeag,  44  N.  H.  1 05. 
An  instruction  true  in  the  abstract,  but  not  so  in  its  application  to  the  case, 
is  properly  refused.  Atherton  v.  Tilton,  44  N.  H.  452 ;  McGuire  v.  State, 
1  Ala.  (S.  C.)  69;  Huffman  v.  Ackley,  34  Mis.  277;  Turner  v.  Loler,  ib 
461 ;  Oliver  v.  Depew,  14  Iowa,  490.  It  is  error  to  give  an  instruction, 
which,  though  accurately  stated  as  a  legal  proposition,  is  so  abstract  or 
remotely  applicable  to  the  testimony  as  to  confuse  or  mislead  the  jury. 
Whitfield  V.  Westbrook,  40  Miss.  311 ;  Lombard  v.  Martin,  39  Miss.  147. 
AVhere  a  request  for  instructions  is  in  part  abstract,  the  court  is  not 
bound  to  charge  as  to  the  other  part.  Eathbone  v.  City,  &c.,  31  Conn.  193. 
AVhere  propositions  embodied  in  points,  propounded  to  the  court,  are  true 
as  general  principles,  they  should  not  be  negatived  without  qualification, 
but,  if  deemed  inapplicable  to  the  case,  the  court  should  refuse  on  that 
ground  to  charge  as  requested.  McKnight  v.  Eatclifi",  44  Penn.  156. 
20 


306  THE    LAW    OF   NEW    TRIALS.  [CH.  XI. 

questioned  by  either  side.^  But  circumstances,  that  raise 
only  a  possibility  or  conjecture,  ought  not  to  be  left  alone 
to  a  jury,  as  evidence  of  a  fact  which  a  party  is  required 
to  prove.^ 

§  61.  AVhere  the  proof  of  the  defendant,  if  believed  by 
the  jury,  would  establish  any  proposition  inconsistent 
with  the  theory  of  the  plaintiff's  prayer  for  instruction, 
based  upon  his  own  evidence;  such  prayer  cannot  be 
granted,  because  it  must  assume  or  admit  the  truth  of  all 
the  defendant's  proof  on  the  subject.^ 

•  §  62.  A  charge  may  be  erroneous  in  reference  to  jwe- 
sumjHions  to  be  drawn  from  a  fact  proved. (a)  In  general, 
an  instruction  that  one  fact  may  be  presumed  from  an- 
other, unless  it  is  a  presumption  of  law,  is  ground  of  new 
trial.*  Thus  a  new  trial  w^as  granted,  where  in  an  action 
upon  a  note  one  of  the  defences  was,  that  it  was  included 
in  an  arbitration.  The  judge  charged,  that,  although  it 
was  not  thus  included,  the  defendant  might  go  to  the 
jury  upon  a  presumption  of  payment  previous  to  the 
award  ;  no  facts  being  proved  to  sustain  such  presumption, 
nor  any  such  defence  relied  upon.^  So  where,  in  an  action 
against  a  sheriff  for  false  imprisonment,  upon  the  ground 
that  the  plaintiff  had  property  liable  to  seizure,  the  judge 

•  State  t>.  Williams,  2  Jones,  194.        «  Glover,  «&c.  ■».  Dulile,  19  Mis. 

2  Sutton  V.  Madrc,  2  Jones,  320.       360  ;  Rogers  «.  IMcCune,  ib.  557. 

3  McTavish  v.  Carroll,  7  Md.  352.         °  Harris  v.  Wilson,  1  Wend.  511. 

(a)  Where  the  evidence  of  the  defendant's  participation  in  a  trespass 
was  altogether  circumstantial,  and  the  verdict  was  for  the  plaintiff:  held, 
the  judge  did  not  err  in  charging  the  jury  that,  although  one  or  more  of 
the  circumstances  detached  would  not  authorize  the  inference  that  the 
defendant  was  the  trespasser;  yet  his  direction  or  consent  to  the  trespass 
might  be  deduced  from  all  the  circumstances  as  enumerated  in  the  charge, 
one  of  which  was,  that  the  defendant,  having  the  opportunity  to  take  the 
stand  and  exculpate  himself,  had  declined  to  do  so.  Greenville  r.  Part- 
low,  14  Eich.  237. 


en.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  307 

instructed  tlie  jury  that  his  having  property  was  not  con- 
clusive, because  the  premises  were  leased,  and  it  might 
reasonably  be  presumed  that  there  was  a  claim  for  rent, 
which  might  defeat  the  execution ;  but  there  was  no  evi- 
"dence  of  any  rent  being  due.^  So  for  an  instruction  that 
the  words /or  value  received  in  a  note  imported  a  considera- 
tion, and  that  gratitude  to  the  father  of  the  plaintiff  (an 
infant),  or  affection  to  the  child,  would  suffice.- 

§  63,  The  instructions  of  the  court  are  required  to  con- 
form to  the  pleadings  as  well  as  facts  of  the  case.^(a)  Thus 

'  Hollister  v.  Johnson,  4  Wend.  Cal.  404  ;  Camp  v.  Heelan,  43  Mis. 

639.  591  ;  Diversv  v.  Kellogi,^    44  111. 

^Holliday  v.  Atkinson,  5   B.  &  114;  Bower'y.  Earl,  IS^Mich.  367; 

C.  501.  Henry  «.  Jones,  1  Idaho  Terr.  38; 

3  Hooker  v.   Johnson,  G    Flori.  Hooker  v.  Johnson,  10  Flori.  198 ; 

730  ;    Whitner  i).  Hamlin,.  12    ib.  Ray  v.  Sellers,  1  Duv.  254;  MofFatt 

18  ;  Conlin  v.  San  Francisco,  36  v.  Conklin,  35  Mis.  453. 

[a]  The  court  may  state  to  the  jury  the  issues  made  by  the  pleadings. 
Eeid  V.  Mason,  14  Iowa,  541.  When  the  facts  as  proved  do  not  tend  to 
support  the  allegations  of  the  pleadings,  it  is  the  province  of  the  court 
to  so  instruct  the  jury.  Jaccard  v.  Anderson,  37  Mis.  91.  An  instruc- 
tion which  takes  from  the  jury  the  consideration  of  the  principal  issue  is 
erroneous.  Turner  v.  Loler,  34  Mis.  461.  Where  the  verdict  involves 
more  than  one  issue,  if  the  charge  is  erroneous  as  applied  to  either,  a 
new  trial  must  be  granted.  Whitacre  v.  Culver,  8  Minn.  133.  A  corpo- 
ration sued  one  of  its  members  in  assumpsit  for  an  instalment  on  his 
stock,  alleging  that  he  was  an  original  subscriber.  The  defendant  denied 
that  he  subscribed,  and  claimed  to  have  purchased  of  A.  upon  the  repre- 
sentations of  A.  that  it  was  fully  paid  up,  and  to  have  paid  for  it  by 
cancelling  a  note  which  he  held  against  A.  The  plaintiffs  requested  the 
court  to  charge  the  jury,  that,  if  the  defendant  purchased  the  stock  upon 
such  false  representations,  the  cancellation  of  the  note  was  of  no  effect, 
and  he  could  recover  the  amount  of  it  from  A.  Held,  that  the  court 
was  not  bound  to  give  this  instruction,  as  the  matter  was  wholly  outside 
of  the  issue.  Redding  v.  Bartram,  31  Conn.  144.  In  an  action  on  a 
note  given  for  town  lots,  the  issues  being,  whether  the  plaintiff  abandoned 
his  land  claim,  and  whether  the  note  was  without  consideration ;  the  fol- 
lowing instruction  was  held  to  be  properly  refused,  viz.,  that,  under  the 
pleadings,  it  must  appear  satisfactorily  that  the  defendant  demanded  a 
conveyance,  or  the  plea  of  want  of  consideration  does  not  apply.  McClane 


308  THE    LAW    OF    NEW    TRIALS.  [CH.  XI. 

a  clefcndant  in  an  action  for  property,  who  did  not  set  up 
in  liis  answer  a  superior  title  in  a  third  party,  cannot  do 
so  through  an  instrnction  to  the  jury.^  And  a  general 
instruction,  on  a  declaration  with  special  and  common 
counts,  is  had,  if  it  is  incorrect  under  any  one  count.  The 
jury  must  he  instructed  in  the  law  applicahle  to  each 
count,  that  they  may  know  on  which  to  find,  and  how 
much  damages  to  find.^  So  a  refusal  to  instruct  the  jury 
that  the  proof  must  conform  to  tlie  pleadings  is  erro- 
neous.' Or  instructions  calculated  to  divert  from  the 
point  in  the  pleadings.^  Or  where  the  parties  agreed  by 
the  pleadings,  that,  while  the  lands  in  question  were  un- 
inclosed,  all  parties  had  a  right  of  common  for  cattle ;  but 
the  charge  was,  that  the  custom  was  not  proved  entirely, 
and,  if  not,  the  verdict  was  to  be  for  the  plaintiff,  which 
was  rendered  accordingly.'  So,  where  no  question  of  juris- 
diction is  raised  by  the  pleadings,  it  is  error  to  instruct 
the  jury,  that,  "if  they  believe  a  certain  fact,  they  must 

'  Watts  V.  Jolmson,  4  Tex.  311.         *■  Fisher  v.  Forrester,  33   Penn. 

2  Given  v.  Charron,  15  JMd.  502.     501  ;  Porter  v.  Ferguson,  4  Flori. 
See  Daltou  v.  Bethlehem,  30  N.  II.     102. 

505.  ^5  How  V.  Strode,  2  Wils.  2G9. 

3  Scott  ».  Lunt,  7  Pet.  596. 

V.  Thomas,  1  Oreg.  288.  Where  the  assigned  breach  of  an  agreement 
was,  that  the  defendant  failed  to  inform  the  plaintiff  of  the  sickness  of  a 
hired  negro,  and  to  send  him  to  the  plaintiff  when  sick,  and  then  ne- 
glected and  ill-treated  him,  by  reason  whereof  he  died;  and  the  defend- 
ant pleaded  a  general  denial :  it  was  error,  under  these  issues,  to  submit 
to  the  jury  whether  the  defendant  failed  to  inform  the  plaintiff  within  a 
reasonable  time,  or  failed  to  send  him  to  the  plaintiff  within  a  reasonable 
time,  after  he  was  taken  sick — the  true  question  was,  whether  the  evi- 
dence established  the  facts  alleged  in  either  of  the  breaches  assigned. 
Southern  v.  Dial,  25  Tex.  G81.  It  is  proper  to  refuse  a  request  to  charge 
that  the  plaintiffs  are  not  entitled  to  recover  damages,  on  a  ground  on 
which  they  have  not  claimed  to  recover  damages.  Weber  v.  Kingsland, 
8  Bosw.  415.  An  instruction  to  the  jury,  that  "  all  the  allegations  in 
the  petition,  which  are  not  denied  specifically  in  the  answer,  are  to  be 
taken  as  true,"  is  erroneous,  as  being  a  general  declaration  of  the  law, 
without  reference  to  the  particular  issue  made  in  the  case.  Missouri  v, 
Hannibal,  35  Mis.  84. 


CH.  XI.J        ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  309 

find  for  the  defendant,  as  the  existence  of  tliat  fact  will 
establish  a  want  of  jurisdiction  over  the  case;"  because, 
as  the  pleadings  stand,  such  a  verdict  is  a  complete  bar  to 
another  action,  to  which  the  plaintiff  is  entitled  in  an- 
other court,  if  a  verdict  against  him  is  rendered  in  pur- 
suance of  such  an  instruction.^  So,  where  the  parties  go 
to  trial  on  the  pleadings,  it  is  proper  for  the  court  to  order 
the  jury  to  find  a  decree,  in  accordance  with  the  rights  of 
the  parties  as  set  out  in  the  pleadings.^  So  a  charge,  ex- 
pressing the  same  idea  conveyed  by  a  plea,  and  stating  it 
most  strongly  against  the  pleader,  cannot  be  alleged  by 
him  as  error.^  So  a  ruling  is  to  be  taken  in  connection 
with  the  pleadings  on  which  it  was  made.  A  ruling  on 
a  demurrer,  that  the  plaintiff  can  recover  only  the  pur- 
chase-money and  interest,  the  petition  charging  fraud, 
generally,  does  not  prevent  him  from  amending,  by  alleg- 
ing a  special  fraud  with  special  damage,  and  therefore 
does  not  excuse  him  for  the  consequences  of  his  failure  so 
to  amend.^  So,  where  the  complaint,  in  an  action  for  money 
lent,  avers  specific  representations  on  the  part  of  the  de- 
fendant, and  that  they  were  false,  and  made  to  defraud 
for  the  purpose  of  obtaining  the  loan;  the  court  may  pro- 
perly call  the  attention  of  the  jury  to  acts  of  the  defend- 
ant not  specified  in  the  complaint,  which  bear  directly 
upon  the  intent.^  So  it  is  competent  for  the  court  to  in- 
struct the  jury  upon  the  sufficiency  of  the  pleadings.^ 

§  64.  An  instruction,  that  the  minutes  of  the  testimony 
taken  by  the  plaintiff's  counsel,  and  read  by  him  to  the 
jury  in  the  course  of  his  argument,  "  if  correctly  taken," 
were  evidence,  though  not  correct  in  terms,  could  not 
mislead  the  jury,  and  is  therefore  not  a  cause  for  a  new 
trial. ^     Nor  is  it  ground  for  setting  aside  a  verdict,  that 

•  Fairbanks    v.    "Woodhouse,    6        ^  French  v.  "White,  5  Duer,  254. 
Cal.  433.  6  Burgess  v.  Lloyd,  7  Md.  178. 

2  Dwelle  V.  Roath,  29  Geo.  783,  ?  Brown  v.  Connelly,  5  Blackf. 

3  Fort  V.  Barnett,  23  Tex.  460.        390. 

♦  Hall  V.  York,  23  Tex.  041. 


310  THE    LAW    OF    NEW    TRIALS.  [CII.  XI. 

the  judo'O,  in  sunnnino'  up,  lias  commented,  liowever 
strono-ly,  on  the  arguments  made  use  of  by  the  counsel 
for  the  unsuccessful  party.^ 

§  65.  A  new  trijil  will  be  ordered,  where  the  judge  ex- 
presses an  opinion  in  favor  of  a  valid  ground  taken  in 
defence,  but  recommends  a  verdict  for  the  plaintiff,  which 
the  defendant  might  move  to  set  aside,  and  tlius  raise  the 
question;  and  the  jury  find  for  the  defendant.- 

§  66.  Where  the  defendants,  in  an  action  against  them, 
as  makers  of  a  note,  brought  by  the  indorsee,  pleaded, 
that  they  assigned  and  delivered  to  the  payee  and  others 
a  large  amount  of  personal  property,  as  security  for  such 
note  and  other  claims;  after  whicli  it  was  agreed  between 
the  defendants  and  the  assignees,  that  any  of  the  assignees 
might  receive  any  part  of  the  property  assigned,  to  the 
amount  of  their  respective  claims,  toward  the  payment 
thereof;  and  that  the  payee  accordingly  received  a  portion 
of  the  property,  to  the  amount  of  the  note,  in  payment 
thereof;  all  of  which  was  done  while  he  was  holder  of  the 
note:  this  plea  being  traversed,  the  plaintiff  on  the  trial 
claimed  that  he  received  the  property  from  the  defendants 
for  a  diiferent  purpose;  and  the  court,  without  adverting 
to  such  claim,  instructed  the  jury,  that,  if  the  facts  stated 
in  the  plea  were  proved,  their  verdict  must  be  for  the  de- 
fendants. After  a  verdict  in  their  favor  it  was  held,  that 
it  ought  not  to  be  set  aside,  on  the  ground  of  a  misdirec- 
tion, or  that  the  finding,  under  the  charge,  showed  that 
the  note  had  been  paid  twicc.^ 

§  67.  The  inquiry,  whether  particular  points  which  arise 
in  a  cause  present  questions  of  law  for  the  court,  or  of  fact 
for  the  jury,  or  mixed  questions  of  law  and  fact ;  is  prolific 

•  Darby  v.  Ouseley,  3G  Eng.  Law  '  Babcock  v.  Callendcr,  17  Coun. 
and  Eq.  518.  34. 

^  Hunt  V.  Bell,  1  Bing.  1. 


CII.  XL]         ERRONEOUS   RULINGS    OR   INSTRUCTIONS.  311 

of  cases  and  nice  distinctions,  of  which  only  a  summary 
view  can  here  be  i3resented.(ft) 

§  68.  In  a  late  case  it  is  remarked,  "  The  line  between 
the  duties  of  a  court  and  jury  is  perfectly  well  defined  ; 
and  the  rigid  observance  of  it  is  of  the  last  importance  to 
the  administration  of  systematic  justice.  In  this  way 
court  and  jury  are  made  responsible,  each  in  its  apjDro- 
priate  department,  for  the  part  taken  by  each,  and  in  this 
way  alone  can  errors  of  fact  and  errors  of  law  be  traced 
to  their  proper  sources."'  And,  in  another  recent  case, 
"  The  true  glory  and  excellence  of  the  trial  by  jury  is  this, 

I  Per  Ames,  C.  J.,  State  v.  Smitli,  6  R.  I.  34. 


(a)  See,  as  to  questions  of  law,  Watson  v.  Tarpley,  18  How.  517; 
Hudson  t).  Weir,  29  Ala.  294;  McKinney  v.  Hartman,  4  Iowa,  154; 
Castro  V.  Gill,  5  Cal.  40 ;  Fairbanks  v.  Woodliouse,  6  ib.  433  ;  Char- 
lotte V.  Chouteau,  25  Mis.  465  ;  Birch  v.  Benton,  26  ib.  153. 

As  to  questions  of  fact.  Com.  v.  Barney,  10  Cush.  480 ;  Putnam  v. 
Bowker,  11  ib.  542  ;  Tuttle  v.  Brown,  4  Gray,  457  ;  Rosenbaum  v.  The 
State,  33  Ala.  354 ;  Conner  v.  Allen,  ib.  515  ;  Lucas  v.  Daniels,  34 
ib.  188  ;  Gilkey  v.  Keeler,  22  Tex.  663 ;  Burr  v.  Williams,  20  Ark.  171. 
Massey  v.  Tingle,  29  Mis.  437  ;  Rogers  v.  Ackerman,  22  Barb.  134;  Ameri- 
can, &c.  V.  Dobbin,  Hill  &  Den.  252 ;  Ernull  v.  Whitford,  3  Jones,  474  ; 
Winship  v.  Buzzard,  9  Rich.  103  ;  Thompson  v.  Wright,  22  Geo.  607  ," 
Hicks  V.  Davis,  4  Cal.  67  ;  Fagin  v.  Conoly,  25  Mis.  94 ;  Birch  v.  Benton, 
26  ib.  153;  Ish  v.  Chilton,  ib.  256;  Snow  v.  Parsons,  2  Wms.  459; 
Goodman  v.  Simonds,  20  How.  343 ;  Hilliard  v.  Goold,  34  N.  H.  230  ; 
Drake  w.  Palmer,  4  Cal.  11;  Hastiugs  v.  Yaughan,  5  ib.  315;  O'Cal- 
laghan  v.  Booth,  6  ib.  63 ;  People  v.  Roberts,  ib.  214. 

On  the  general  subject  of  law  and  fact ;  Nave  v.  Horton,  9  Ind.  563  ; 
Rabe  v.  Wells,  3  Cal.  148 ;  Com.  v.  Anthes,  5  Gray,  185 ;  Berwick  v. 
Horsfall,  4  Com.  B.  N.  S.  450 ;  Catling  v.  Newell,  9  Ind.  572  ;  Bourke 
V.  James,  4  Mich.  336 ;  Wright  v.  Mattison,  18  How.  50  ;  Conklin  v. 
Thompson,  29  Barb.  218 ;  Chapin  v.  Potter,  1  Hilt.  366  ;  Kuns  v.  Young, 
34  Penn.  60 ;  Tobin  v.  Gregg,  ib  446 ;  Ferguson  v.  Clifford,  37  N.  H. 
86;  Dascomb  v.  Buffalo,  &c.,  27  Barb.  221;  Updike  v.  Skillman,  3 
Dutch.  131;  Finley  v.  Hanbest,  30  Penn.  190;  Burroughs  v.  Langley, 
10  Md.  248  ;  Journey  v.  Sharp,  4  Jones,  165  ;  Belden  v.  Gray,  5  Flori. 
504 ;  Sullivan  v.  Honacker,  6  ib.  372. 


312  THE    LAW    OF   NEW    TRIALS.  [CII.  XI. 

that  the  power  of  dccidino;  fact  and  law  is  wisely  divided; 
that  the  authority  to  decide  questions  of  law  is  placed  in 
a  Ix^dy  well  qualified,  hy  a  suitable  course  of  training,  to 
decide  all  questions  of  hnv ;  and  another  body,  well  quali- 
fied for  the  duty,  is  charged  with  deciding  all  questions 
of  fact  definitively ;  and  while  each,  within  its  own 
sphere,  performs  the  duty  intrusted  to  it,  such  a  trial 
affords  the  best  possible  security  for  a  safe  administration 
of  justice  and  the  security  of  public  and  private  rights."^ 
So  it  is  held,  that  the  court  responds  to  the  law,  and  the 
jury  to  the  facts  of  the  case.  And  a  mistake  by  either  in 
their  several  provinces  is  good  ground  to  set  aside  a  ver- 
dict. But  the  views  and  notions  which  jurors  individually 
or  collectively  may  entertain  of  the  law  cannot  affect  their 
finding.^  So  that  in  civil  cases  the  law  is  for  the  court, 
and  if,  after  instructions,  counsel  undertake  to  argue  the 
law  to  the  jury  against  the  rulings  of  the  court,  the  court 
may  stop  them.^ 

§  69.  The  purpose  of  a  trial  by  jury  is  to  ascertain  the 
material  facts  in  the  case,  where  they  are  controverted ; 
hence  nothing  is  properly  referred  to  the  jury  but  a  ma- 
terial controverted  matter  of  fact.  Neither  immaterial 
matters  nor  uncontroverted  facts  should  be  submitted ; 
but  the  court  should  declare  its  judgment  according  to 
the  truth  of  the  material  facts  ascertained  by  the  plead- 
ing8.^(a) 

§  70.  The  question  of  variance  is  for  the  court  alone.*^ 

'  Per  Shaw,  C.  J.,  Com.  v.  An-  ■•  Thiirpou  i).  Mississippi,  itc,  33 

thes,  5  Gray,  198.  Miss.  347. 

2  Kilgore  «.  Jordan,  17  Tc'X.  341.  ^  picndrick  v.  Kellog,  3   Iowa, 

3  Delaplane    «.     Crenshaw,    15  215. 
Gratt.  457. 

(a)  See  §§  30,  39,  77.  In  New  York,  where  facts  are  to  be  settled, 
and  the  evidence  is  conflicting,  it  is  error  to  take  a  verdict,  subject  to  the 
opinion  of  the  court  at  general  term.  To  deduce  facts  from  the  evidence 
is  the  province  of  a  jury.     Brower  v.  Orser,  2  Bosw.  365. 


CH.  XI.]        ERRONEOUS   RULINGS   OR  INSTRUCTIONS.  313 

So  all  preliminary  questions  of  fact,  on  which  the  admis- 
sibility of  evidence  depends.X«)  So  the  interest  of  a  wit- 
ness.2  So,  in  general,  it  is  a  question  of  law  for  the  court, 
whether  an  offer  of  a  certain  sum,  as,  for  example,  for 
land,  was  by  way  of  compromise,  and  therefore  not  com- 
petent testimony.^ 

§  71.  But  it  is  sometimes  held,  that  a  preliminary 
question  of  this  nature  may  he  decided  by  the  judge  or 
submitted  to  the  jury,  at  the  discretion  of  the  former. 
Thus,  when  a  statement  of  the  adverse  party  is  offered  in 
evidence,  and  objected  to  on  the  ground  that  it  is  an  offer 
or  proposition  for  the  settlement  of  a  controversy ;  the 
preliminary  question,  whether  the  statement  was  intended 
by  the  party  making  it  as  an  admission  of  a  fact,  and 
not  merely  an  offer  to  compromise,  may  be  determined  by 
the  court,  or,  in  their  discretion,  it  may  be  submitted  to 
the  jury,  with  proper  instructions  to  disregard  it,  if  they 
find  it  to  have  been  merely  such  offer  or  proposition,  and 
to  weiffh  it  as  evidence,  if  intended  as  such  admission.-* 

§  72.  Eut,  on  the  other  hand,  the  weight  and  effect  of 
evidence  are  to  be  determined  by  the  jury  alone.^  (See 
§  41.)  And  the  court  may  properly  refuse  to  say  whether 
it  was  weak  or  otherwise.^    In  a  late  case  the  court  re- 

'  Boyle  ^).  Wiseman,  33  Eng.  Law  °  Kiester  v.  Miller,  25  Penn.  481; 

and  Eq.  393.  State  v.  Upton,  20   Mis.  397  ;  In- 

2  Tahor  v.  Staniels,  2  Cal.  240.  gram  v.  Marshall,  23  Ark.  115. 

3  Davis  V.  Charles,  &c.,  11  Cush.  ^  Kiester  v.  Miller,  25  Penn.  481; 
506.  Pettingill  v.  Porter,  8  Allen,  1. 

^  Bartlett  «.  Hoyt,  33  K  H.  151. 


(a)  In  general  it  is  for  the  court  to  determine  the  admissibility  of  evi- 
dence ;  but  when  this  depends  on  facts,  and  the  evidence  is  conflicting, 
the  question  may  be  submitted  to  the  jury,  under  proper  instructions. 
Verzen  v.  McGregor,  23  Cal.  339.  It  is  not  proper  to  instruct  a  jury 
for  what  special  and  exclusive  purpose  certain  evidence  was  introduced, 
when  it  can  be  legitimately  applied  to  another  and  different  purpose. 
White  V.  Walker,  31  111.  422. 


314  THE   LAW    OF   NEW    TRIALS.  '         [CH.  XI. 

mark,  "  It  is  not  a  question  of  tlie  legal  sufficiency  of  the 
whole  evidence,  but  of  the  weight  of  conflicting  evidence. 
The  line  of  distinction  is  well  established,  although  it  is 
sometimes  difficult  to  determine  upon  wdiich  side  of  it 
a  case  falls."^  So  objections  which  go  to  the  credibility 
of  a  witness,  and  not  to  the  legality  of  the  evidence,  are  , 
for  the  jury  and  not  for  the  court.^  Thus  it  is  for  the 
jury  to  judge,  what  weight  they  will  give  to  declarations 
of  a  party. ^  More  especially  where  evidence  is  conflict- 
ing, it  is  a  proper  case  for  the  jury  to  judge  of  the  credi- 
bility of  witnesses  and  of  the  weight  of  evidonce.''(rt) 

§  73.  All  issues  of  fact  in  criminal  proceedings  should 
be  tried  by  the  jury.-''  And  the  prevailing  rule  is,  in  terms, 
though,  as  will  be  seen,  somewhat  variously  construed, 
that  in  criminal  cases  the  jury  are  judges  of  the  law  as 
well  as  of  the  facts,  and  it  is  error  in  the  court  to  restrict 
them  to  "  the  law  as  given  in  the  charge  by  the  court."^ 
Nor  are  they  bound  by  a  charge,  unless  it  truly  states  the 
law.^     So  an  expression  of  opinion  as  to  the  sufficiency  of 

>  PcrGray,  J.,Rccd«.Deerfield,  ^  Casoii  v.  State,  22   Ark.  214 

8  Allen,  524.  Bennett  v.  State,  ib.  215. 

2  Townshend  v.  Townsliend,    G  ^  McGuffie  d.  State,  17  Geo.  497 
Hd.  2!)5.  2  Swan,  482;  22  Geo.  478  ;  lOInd 

3  Smith  V.  Northera  Bank,  1  273,  503  ;  State  «.  Saliba,  18  La 
Met.  (Ky.)  575.  An.  35. 

*  Alley  V.  Booth,  IG  Tex.  94.  ^  McPherson   v.  State,  22   Geo. 

478. 

(a)  The  court  must  determine  the  issues  made  by  the  pleadings. 
Pharo  V.  Johnsoa,  15  Iowa,  .500.  So  also  the  competency  of  a  witness; 
and,  though  the  jury  may  and  ought  to  examine  into  and  scrutinize  the 
credibility  of  a  witness,  they  have  no  right  to  exclude  his  evidence  on 
the  grouud  of  interest,  if  he  has  been  admitted  as  competent.  Wickliffe 
V.  Lynch,  36  111.  209.  The  jury  are  to  pass  on  the  credibility  and 
weight  of  circumstances  in  evidence.  People  v.  Barry,  31  Cal.  357. 
The  question  as  to  how  far  evidence,  that  is  legitimate  and  properly  ad- 
mitted, is  material,  and  to  how  much  weight  it  is  entitled,  is  one  entirely 
for  the  jury;  and  it  is  erroneous  for  the  court  to  instruct  them  as  to  the 
materiality  of  evidence.     Stacy  v.  Cobbs,  3G  111.  349, 


CH.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  315 

evidence  is  error  for  which  a  new  trial  must  he  granted, 
notwithstanding  the  judge  instructed  the  jury  that  they 
were  to  determine  the  facts  without  regard  to  any  opinion 
of  his.^  So  a  charge,  that  they  are  to  receive  the  facts 
from  the  evidence  and  the  law  from  the  court,  hut  that 
the  court  cannot  set  aside  or  overrule  their  verdict  of  not 
guilty,  is  error.2  While,  on  the  other  hand,  an  instruc- 
tion, that  "  the  jury  have  the  right  to  determine  the  law 
and  the  facts,  hut  it  is  the  duty  of  the  court  to  instruct 
the  jurj^  what  the  law  is,"  is  correct.^  So  also  an  instruc- 
tion, "that  the  jury  are  not  only  judges  in  the  facts  of 
the  case,  hut  they  are  judges  of  the  law.  The  court  is  a 
witness  to  them  as  to  what  the  law  is.  After  the  court 
has  stated  the  law  to  them,  then,  if  they  helieve  it  to  be 
different,  they  can  disregard  the  opinion  of  the  court.  If 
the  jury  err  in  favor  of  the  defendant,  their  judgment  is 
final,  and  cannot  be  reversed  by  the  Supreme  Court."^ 

§  74.  But  it  is  held,  on  the  other  hand,  that  a  jury,  as 
opposed  to  the  court,  is  judge  of  the  law  in  a  criminal 
case,  only  so  far  as  it  has  the  power  to  disregard  state- 
ments of  the  court.^  So  that  the  language  of  the  consti- 
tution (in  Maryland),  that  in  the  trial  of  all  criminal 
cases  the  jury  shall  be  judge  of  law  as  well  as  of  fact,  is 
merely  declaratory,  not  affecting  the  pre-existing  law  as 
to  the  relative  powers  of  courts  and  juries  in  criminal 
cases  ;  and  the  court  may  rightly  prevent  the  counsel  for 
the  defence  from  arguing  the  constitutionality  of  a  law 
to  the  jury.^  So,  in  Massachusetts,  by  a  majority  of  the 
court,  that  under  a  statute  which  declares  that,  "  in  all 
trials  for  criminal  offences,  it  shall  be  the  duty  of  the 
jury  to  try,  according  to  established  forms  and  princijiles 
of  law,  all  cases  which  shall  be  committed  to  them,  and, 

'  State  1).  Dick,  1  Wins.  No.  2,        »  Stocking  v.  State,  7  Ind.  326. 
45.  4  Nelson  v.  State,  3  Swan,  482. 

2  McCnllough  V.  State,  10  Ind.  ^  Com.  v.  Van  Tuyl,  1  Met. 
276  ;  Williams  v.  State,  ib.  503.  (Ky.)  1. 

"  Franklin  v.  State,  12  Md.  236. 


31G  THE   LAW    OF   NEW    TRIALS.  [ciI.  XI. 

after  having  received  the  instructions  of  the  court,  to 
decide  at  their  discretion,  by  a  general  verdict,  botli  the 
fact  and  the  law  involved  in  the  issue,  or  to  return  a 
special  verdict  at  their  election,"  the  jury  have  no  rightful 
power  to  determine  questions  of  law  involved  in  the  issue, 
against  the  instructions  of  the  court;  such  statute,  thus 
construed,  being  unconstitutional.  And,  in  Mississippi, 
that  the  jury  are  not  the  judges  of  the  law  in  a  criminal 
action.  Although  their  verdict,  when  the  general  issue 
is  pleaded,  is  compounded  of  both  law  and  fact ;  yet  the 
court  must  respond  as  to  the  law,  and  the  jury  as  to  the 
facts. '(a) 

'  Williams  v.  State,  82  Miss.  389  ;  Com.  v.  Antlies,  5  Gray,  185. 

(a)  In  Iowa,  under  the  Code  (§  2772),  the  jury  are  made  the  judges  of 
the  law  and  the  fact  only  in  criminal  cases.  And  even  in  criminal  cases 
it  is  proper  for  the  court  to  give  instructions  to  the  jury.  Forshee  v. 
Abranis,  2  Clarke,  571.  In  Georgia,  the  jury  are  judges  of  the  law  as 
well  as  of  the  fact,  in  all  cases;  subject  only  to  a  new  trial,  when  the 
verdict  is  contrary  to  law.  Robinson  v.  Adkins,  19  Geo.  398.  In  South 
Carolina,  in  capital  cases,  the  jury  are  not  judges  of  the  law.  It  is 
their  duty  to  receive  the  law  as  laid  down  to  them  by  the  court.  State 
V.  Drawdy,  14  Rich.  L.  87.  So  in  criminal  trials  in  the  United  States 
courts.  And  the  court  may  require  counsel  to  argue  a  question  of  con- 
stitutionality to  the  court.  United  States  v.  Riley,  5  Blatchf.  C.  C.  204. 
In  New  York  and  New  Hampshire,  in  criminal  cases,  the  jury  are  bound 
to  render  a  verdict  in  accordance  with  the  law,  as  laid  down  by  the  court. 
Lord  V.  State,  16  N.  II.  325  ;  Duffy  v.  People,  26  N.  Y.  (12  Smith)  588. 
In  Massachusetts,  since  the  St.  of  1855,  c.  152,  as  well  as  before,  the 
jury,  in  a  criminal  case,  are  to  be  governed  by  the  instructions  of  the 
court  in  matter  of  law.  Commonwealth  v.  Rock,  10  Gray,  4.  It  is  no 
ground  of  exception,  that  the  judge  refused  to  instruct  the  jury  that  the 
St.  of  1855,  c.  152,  changed  the  law  as  it  stood  before,  by  enlarging  the 
power  of  the  jury  to  judge  of  the  law,  and  was  constitutional;  and  in- 
structed them  that  it  was  their  duty  to  take  the  law  from  the  court,  and 
to  conform  their  judgment  and  decision  to  its  instructions,  so  far  as  they 
understood  them,  in  apjjlying  the  law  to  the  facts  to  be  found  by  them. 
Com.  V.  Huber,  12  Gray,  29.  In  Vermont,  in  a  trial  for  selling  intoxi- 
cating liquors,  it  is  a  question  for  the  jury,  under  a  statute  making  them 
judges  of  the  law  as  well  as  the  facts,  in  criminal  cases,  whether  ale  is 
intoxicating.    State  v.  Barron,  37  Vt.  57. 


CH.  XI.]         ERRONEOUS   RULINGS    OR    INSTRUCTIONS.  317 

§  75.  Eminent  judges  have  thus  expressed  themselves 
upon  this  subject :(«)  "Should  you  assume  and  exercise 
this  power,  your  opinion  does  not  become  a  supreme  law, 
no  one  is  bound  by  it,  other  juries  will  decide  for  them- 
selves, and  you  could  not  expect  that  courts  would  look 
to  your  verdict  for  the  construction  of  the  constitution, 
as  to  the  acts  of  the  legislative  or  judicial  departments  of 
the  government. — If  one  jury  exercises  this  power,  we 
are  without  a  constitution  or  laws.  One  jury  has  the 
same  power  as  another;  you  cannot  bind  those  who  may 
take  your  places ;  what  you  declare  constitutional  to-day, 
another  jury  may  declare  unconstitutional  to-morrow."^ 

§  76.  "My  opinion  is,  that  the  jury  are  no  more  judges 
of  the  law  upon  the  plea  of  not  guilty,  than  they  are  in 
every  civil  case  tried  upon  the  general  issue.  In  each  of 
these  cases  their  verdict,  when  general,  is  necessarily 
compounded  of  law  and  of  fact;  and  includes  both. — In 
each  they  have  the  physical  power  to  disregard  the  law 
as  laid  down  to  them  by  the  court.  But  I  deny  that 
in  any  case,  civil  or  criminal,  they  have  the  moral  right 
to  decide  the  law  according  to  their  own  notions  or 
pleasure."^ 

§  77.  As  we  have  already  seen  (§  32),  where  there  is  no 
evidence,  the  case  becomes  matter  of  law,  and  a  nonsuit 
may  properly  be  ordered.^ 

§  78.  And  leaving  a  question  of  law  to  the  jury  is  ground 
of  new  trial;  as  where  a  new  promise  was  made,  iciih- 

'  Per  Baldwin,  J.,  U.  S.  v.  Shine,        ^  Lower  ?».  Clement,  25  Penu.  63; 

1  Baldw.  513.  Paxsou  v.  Bailey,  17  Geo.  GOO. 
2  Per  Story,  J.,  U.  S.  v.  Battiste, 

2  Sumn.  243. 

(a)  When  the  late  Judge  Thompson  was  requested  to  charge  the  jury 
that  they  were  judges  both  of  the  law  and  the  fact,  he  replied,  "  I  shan't; 
they  ain't."     2  Whart.  Crim.  L.  I  3100. 


318  THE   LAW    OF   NEW    TllIALS.  [CH.  XI. 

out  disjnifc,  and  relied  upon  as  an  answer  to  the  statute  of 
limitations.^  So  a  motion  to  the  court  to  instruct  that, 
taking  the  facts  testified  to  by  all  the  witnesses  on  the 
other  side  as  true,  a  certain  paper  was  not  proved  to  be 
the  w^ill  of  the  testator,  is  not  to  be  denied,  on  the  ground 
that  it  asks  the  court  to  pass  upon  the  tacts.  The  court, 
in  such  case,  would  have  a  right  to  state  the  law  which 
would  apply  to  those  facts.^  Xor  will  a  new  trial  be 
o-ranted,  where  only  points  of  law  are  raised,  which  are 
overruled,  and  the  judge  charges  that  the  plaintiff  is  en- 
titled to  a  verdict;  because  a  question  of  fact  was  not 
submitted.3  ;^or,  on  the  other  hand,  will  a  new  trial  be 
granted,  for  leaving  questions  of  fact  to  the  jury.'* 

§  79.  The  construction  of  writings,  involving  the  mean- 
ing of  words,  the  proper  form  of  action,  &c.,  is  a  question 
of  la\^^X«)     It  is  the  province  of  the  judge  to  charge  the 

'  Clarke  v.  Dutchcr,  9  Cow.  C74.  Cook's,  &c.  v.  Carroll,  G  Md.  104; 

2  Green  v.  Crain,  12  Gratt.  252.  Gorton  v.   Iladscll,   9  Cush.    508 ; 

3  Hunter  v.  Osterliondt,  11  Barb.  Drew  v.  Towle,  10  Fost.  5;jl;  Wood- 
33  man  v.  C'hesley,    39    Maine,    45 ; 

i  Johnson  v.  Parks,  10  Cal.  446.  Shepherd  «.  White,  11  Tex.  346. 

5  Cochcco   I'.  Berry,    52   Maine,  See  Thomas  n.  Thomas,  15  B.  Mon. 

293- Silverthornew.  Fowle,4Jones,  178  ;  American,    &c.  v.  Inloes,   7 

362  •  Caldwell  «.  Dickson,  26  Mis.  Md.   380  ;    Pickerell   v.  Carson,    8 

OO-'Banney  v.  lligby,  5  Wis.  62;  Clarke,   544;  Estes  v.  Bootlie,  20 

Myers  t\  York,  &c.,  43  Maine,  232;  Ark.   583;    Lovistou   «.  Junction, 

Burnham  v.  Ayer,  35  N.  H.  351  ;  &c.,  7  Ind.  597. 
San,   &c.   V.    Lewis,    9    Tex.    69; 


(a)  Written  instruments  are  to  be  construed  by  the  court,  upon  in- 
spection, unless  there  are  terms  of  art  or  other  unusual  language,  used 
out  of  its  ordinary  signification,  requiring  explanation  by  extrinsic  evi- 
dence. Van  Email  v.  Staiiclifield,  8  Minn.  518.  The  question,  whether 
a  release  taken  by  a  defendant  of  "  all  causes  of  action,"  &c.,  on  settle. 
ment  of  his  appeal  from  a  justice's  judgment,  included  the  costs,  is  for 
the  court.  Packer  v.  Packer,  24  Iowa,  20.  Whether  a  will  contains 
any  special  trusts  which  require  the  joint  action  of  all  the  executors,  is 
a  question  of  law.  AVillson  v.  WMiitfleld,  38  Geo.  269.  A  petition,  seek- 
ing to  annul  an  instrument  probated  as  a  will,  and  to  set  aside  the  pro- 
bate, upon  the  ground  that  it  appears  on  its  face  to  be  a  deed,  raises  a 
purely  legal  question.     Sartor  v.  Sartor,  39  ISliss.  760.     A  writing  was 


en.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  319 

jury  as  to  the  legal   effect  of  written  evidence^  wliether 
asked  to  do  so  or  not.'     The  meaning  and  construction  of 

1  Bennett  -y.  Ilollis,  9  Tex.  437  ;  Carpenlier  v.  Thirston,  24  Cal.  208. 


made,  "  Know  ye,  that  I  freely  and  equally  give  unto  my  son  and  daugh- 
ter, all  the  following-named  property,  &c.,  to  have  and  to  hold  the  same 
forever  as  their  own  right  and  property  after  my  death."  "  This  deed, 
however,  is  not  to  deprive  myself  of  the  use  of  any  or  all  of  said  pro- 
perty so  long  as  I  live,  and  after  my  death  they  will  take  full  possession 
of  the  whole,  and  it  is  my  wish  that  they  equally  divide  said  property 
themselves,  but  should  they  disagree,  that  each  of  them  choose  disin- 
terested persons  to  make  the  division  between  them  according  to  this 
deed,  so  that  no  part  of  said  property  may  be  exposed  to  public  sale." 
It  was  signed  and  sealed,  acknowledged  and  recorded,  as  a  deed.  Held, 
the  writing,  with  the  fact  of  its  delivery  and  the  intention  and  purpose 
of  its  execution,  should  be  submitted  to  the  jury.  Ferguson  v.  Ferguson, 
27  Tex.  339.  Upon  a  bill  in  equity  seeking  the  construction  of  a  will, 
when  parol  evidence  is  introduced,  it  is  error  to  instruct  the  jury  in  such 
a  way  as  to  lead  them  to  believe  that  it  is  their  duty  to  construe  the  will 
by  its  words.  Doyal  v.  Smith,  31  Geo.  198.  The  construction  of  an 
ambiguous  term  in  a  will,  although  generally  a  question  of  law,  may  be 
submitted  to  the  jury,  when  the  doubt  is  produced  by  collateral  and  ex- 
trinsic facts,  not  appearing  upon  the  instrument,  which  existed  when  it 
was  made.  Warner  v.  Milteuberger's,  21  Md.  264.  AVhere  the  evidence 
of  the  ratification  of  a  will,  by  the  acceptance  of  legacies  under  it,  con- 
sists of  the  acts  of  the  party  and  of  the  language  used  in  the  party's  own 
will,  it  is  not  error  to  submit  the  whole  question  to  the  jury.  Dufifey  v. 
Congregation,  48  Penn.  46.  It  is  the  province  of  the  court  to  deter- 
mine what  facts  are  necessary  to  establish  the  signing  and  attestation  of 
a  will  within  the  meaning  of  the  (Ala.)  code.  Riley  v.  Riley,  36  Ala. 
490.  The  sufficiency  of  evidence,  to  establish  the  presentation  of  a  claim 
against  a  testator's  estate  to  his  executor,  should  be  left  to  the  jury. 
Frazier's  v.  Pray  tor,  36  Ala.  691. 

Whether  the  statements  in  an  application  for  insurance  are  represen- 
tations or  limited  warranties,  the  question  as  to  their  materiality,  and  as 
to  the  knowledge  of  the  applicant,  is  properly  left  to  the  jury.  Garcelou 
V.  Hampden,  50  Maine,  .580.  In  case  of  alteration  in  an  insurance  risk, 
still  keeping  within  the  same  character  of  risk,  it  is  for  the  jury  to  find 
whether  the  risk  has  been  increased.  Smith  v.  Mechanic's,  32  N.  Y.  399. 
The  question,  whether  a  vessel  insured  was  seaworthy  at  the  inception  of 
the  voyage,  is  ordinarily  for  the  jury.  Walsh  v.  Washington,  32  N.  Y. 
427.     So  the  question,  when  a  presumption  of  loss  arises;  and,  in  case  of 


320  THE    LAW    OF    NEW    TRIALS.  [CIL  XI. 

a  paper  are  only  left  to  a  jury,  when  they  depend  upon 
extrinsic  facts  which  are  doubtful  or  disputed.^  It  is  not 
error  to  instruct  the  jury  to  fincl  a  verdict  for  the  defend- 
ant, where  the  whole  testimony  is  in  writing,  and  there 
is  nothing  in  the  case  to  submit  to  them  as  a  question  of 
fact.^  And  leaving  the  construction  of  papers  to  the  jury 
is  ground  of  new  trial.^  Or  a  misapprehension  by  the 
court  of  the  construction  of  an  agreement,  by  reason  of 
which  the  jury  are  misled  by  the  charge.*  Thus  it  is  the 
duty  of  the  court  to  determine  whether  a  writing  offered 
is  a  contract,  fixing  the  liability  of  the  parties.^  So,  if  a 
written  contract  sued  on  is  void  on  its  face  by  the  statute 
of  frauds,  the  jury  may  be  instructed,  in'  terms,  to  find 
for  the  defendant.^  So  the  legal  im})ort  and  significance 
of  the  words  of  a  deed  is  a  f|ucstion  for  the  court.  Though 
the  court  must  look  at  the  circumstances.'  So,  whether 
letters  between  the  parties  constitute  an  agreement  or  a 
discharge  of  one,  or  whether  an  agreement  enlarges  the 
time  for  performance  of  a  contract,  and,  if  so,  to  what 
extent.^  More  especially  where  there  is  no  ambiguity  in 
a  deed  admitted  in  evidence,  the  court  must  declare  its 
legal  effect.^     So,  whether  a  deed  is  a  disaflirmance  of  a 

'  EcU'lman  v.  Yeakel,  27  Penn.  ^  Eyser  v.  "Weissgerber,  2  Clarke, 

20.  See  Stokes  t).  Biirrcll,  3  Grant,  4G3. 

241.  6  Rigby  v.   Norwood,    34    Ala. 

2  Webb  V.  Mears,  45  Penn.  222.  129. 

3  Brown  v.  Huger,  21  How.  305;  ?  Cox  v.  Freedley,  33  Penn.  124. 
Baltimore,  &c.  v.  Resley,  14  Md.  ^  Luckliart  v.  Oyden,  30  Cal. 
424.  r,47 ;  United  States  v.  Shaw,  1  Cliff. 

*  Stroll  7J.  Hess,  1  "Watts  &Serg.  317;  Van  Valkenburg  v.  Rogers, 
147;  Chrislman  v.  Gregor}',  4  B.  18  j\Iich.  180;  Smith  v.  Faulkner, 
Mon.  474.  12  Gray,  251, 

9  Symmes  v.  Brown,  13  Ind.  318. 


loss,  the  time  it  occurred.  Clifford  v.  Thomastou,  50  Maine,  197.  Where, 
by  parol  evidence,  it  appears  uncertain  to  which  of  two  buildings  an  in- 
surance policy  applies,  the  question  is  for  the  jury.  Beatty  v.  Lycoming, 
.^2  Penn.  456. 

Where  a  lease  described  the  property  merely  as  the  lessor's  "  coal 
bank  and  the  appurtenances  thereunto  belonging,"  without  boundaries ; 
held,  a  question  for  the  jury,  what  was  the  extent  of  the  demise.  Tiley 
V.  Moyers,  43  Penn.  404. 


CH.  XI.]         ERRONEOUS    RULINGS    OR    INSTRUCTIONS.  321 

former  deed  made  by  the  grantor  when  an  infant.^  So,  if 
a  case  be  covered  by  a  clear  rule  of  positive  law,  it  is  only 
the  court,  and  not  the  jury,  that  can  administer  an  equi- 
table exception  in  its  behalf,  or  judge  whether  the  evi- 
dence oifered  is  admissible  to  sustain  such  exception.  As 
whether  particular  parol  evidence  be  sufficient  to  convert 
an  absolute  conveyance  into  an  equitable  mortgage.^ 

§  80.  It  is  for  the  court,  and  not  the  jury,  to  say, 
whether  certain  acts  were  according  to  the  constitution 
and  by-laws  of  a  society.^  So,  where  the  material  facts 
are  not  controverted,  the  question,  whether  upon  those 
facts  the  act  incorporating  a  town  and  the  assessment  of  a 
tax  under  it  are  constitutional  and  valid,  is  a  conclusion 
of  law,  which  may  be  pronounced  at  once  by  the  court  in 
its  instructions  to  the  jury.  Though  the  facts,  if  contro- 
verted, are  for  the  jury.^a) 


'  Peterson  v.  Laik,  24  Mis.  541.  ^  Osceola,  &c.  v.  Rost,  15  Md. 

2  De  France   v.  De  France,    34    395. 
Penn.  385.  »  Maltus^.  Shields,  2  Met.  (Ky.) 

553. 


{a)  Under  the  act  of  Congress  of  June  13,  1812,  relative  to  the  settle- 
ment of  land  claims  in  Missouri,  the  question,  what  constitutes  an  out- 
lot  or  common  field  lot,  is  one  of  law,  for  the  court  to  decide.  Fine  v.  St. 
Louis  Schools,  39  Mis.  59.  Though  the  factum  of  a  foreign  law  is  for 
the  jury,  it  is  the  duty  of  the  court  to  construe  it,  especially  if  it  be  in 
writing,  and  to  direct  the  jury  as  to  its  force  and  effect.  Cecil  Bank  v. 
Barry,  20  Md.  287.  In  an  action  for  injuries  to  a  mill  and  mill-site  by 
causing  water  to  flow  back  on  them,  an  instruction,  that,  in  order  to 
maintain  his  defence  on  the  ground  of  a  prior  right  as  a  lower  mill-owner 
on  the  same  stream,  the  defendant  "  must  have  shown  himself  to  be  a 
mill-owner  within  the  meaning  of  the  law  relating  to  mills  and  mill-dams," 
was  properly  refused,  because  it  left  a  question  of  law  to  the  jury.  Large 
V.  Orvis,  20  Wis.  696.  Where  parol  evidence  was  given  of  mining  laws 
and  customs,  and  written  laws  were  afterwards  introduced,  but  doubt  was 
raised  whether  the  latter  were  in  force  at  the  time ;  held,  it  was  proper 
to  leave  both  parol  and  written  evidence  to  the  jury.  Colman  v.  Clements^ 
23  Cal.  245.  Where  one  contracts  by  parol  to  deliver  a  number  of  bar- 
rels of  oil,  but  of  no  specified  capacity ;  it  is  for  the  jury  to  determine^ 

21 


322  THE   LAW    OP   NEW   TRIALS.  [CH,  XI, 

§  81.  It  is  for  the  court  to  decide,  what  are  the  letters 
and  figures  in  a  written  instrument,  and  the  meaning  to 
be  attached  to  them.^  Though,  if  the  court  is  in  doubt, 
it  may  submit  the  question  to  the  jury.^  Where  there  is 
any  conflicting  evidence  as  to  the  genuineness  of  the  de- 
fendant's sig-nature  to  a  bond  on  which  the  action  is 
founded,  the  case  should  go  to  the  jury,  and  their  finding 
in  that  respect  is  conclusive.^ 

§  82.  It  is  held  that  the  terms  of  an  oral  contract,  when 
clearly  proved,  and  intelligible  and  explicit,  are  to  be  con- 
strued by  the  court,  and  not  by  the  jury.*  But  the  dis- 
tinction is  made,  that  the  meaning  of  the  parties  to  a 
written  contract  is  a  question  of  law,  to  be  decided  by  the 
court :  but,  where  there  is  no  written  instrument,  circum- 
stances in  proof  may  essentially  vary  the  literal  import  of 
the  language  employed ;  and  it  is  not  the  province  of  the 
judge  to  give  a  construction  to  it,  as  an  imperative  rule 
of  law,  but  for  the  jury  alone  to  determine,  from  the  evi- 


«  Riley  v.  Dickens,  19  111.  29.  3  ^lageew.  Osborn,  33  N.  Y.  669. 

*  Partridge      v.     Patterson,      6  '  Short  v.  Woodward,  13  Gray, 

Clarke,  514.    See  Nichols  v.  Froth-  86. 
ingham,  45  Maine,  230. 

whether  the  contract  was  fulfilled  by  delivery  of  a  less  number  of  greater 
capacity  than  the  statute  barrel ;  and  it  is  not  error,  where  no  specific 
instruction  was  requested,  that  the  statute  standard  would  govern,  to 
submit  this  question  to  the  jury.  Cullum  v.  \Yagstaff,  48.  Peun.  300. 
Whether  a  will  is  executed  with  the  proper  formalities  is  a  question  of 
law.  Roe  v.  Taylor,  45  111.  485.  The  existence  of  the  facts  necessary 
to  constitute  an  "out-lot"  of  St.  Louis  is  for  the  jury,  but  what  facts  will 
constitute  an  "  out-lot"  is  a  question  for  the  court.  Vasquez  v.  Ewing, 
42  Mis.  247.  So  what  is  lawful  money  of  the  United  States  other  than 
gold  and  silver  coin.  Chesapeake  Bank  v.  Swain,  29  Md.  483.  When 
the  standard  of  duty  of  a  father  to  his  young  child  is  a  shifting  one,  a 
jury  must  determine  what  it  is,  as  well  as  find  whether  it  has  been  com- 
plied with.  Otherwise  when  the  law  determines  precisely  what  the  ex- 
tent of  duty  is,  and  there  has  been  no  perfurmauce  at  all.  Glassey  v. 
Hestonville,  57  Peun.  172. 


en.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  323 

dence,  what  was  said  and  done  by  the  parties,  and  there- 
from to  find  their  intention.^ 

§  83.  It  is  held,  that,  where  a  written  instrument  has 
been  lost,  and  parol  evidence  of  its  contents  received,  its 
construction  is  still  for  the  court,  and  not  for  the  jury.^ 

§  84.  Whether  a  contract  is  against  public  policy,  is  a 
question  of  law.^ 

§  85.  The  construction  of  a  record  is  a  question  of  law.* 
So  it  is  error  to  refer  to  the  jury  the  question,  how  far 
parol  evidence  is  inconsistent  with  a  record.^  Thus,  in  a 
suit  by  an  administrator,  the  construction  of  the  order 
appointing  him  administrator  is  a  matter  for  the  determi- 
nation of  the  court,  and  it  is  the  duty  of  the  court  to  in- 
struct the  jury  whether  the  order  is  valid.^  So  it  is  the 
duty  of  the  court,  and  not  of  the  jury,  to  determine  the 
nature  of  the  action,  or  for  what  the  plaintift'  seeks  to 
recover.  Thus  where,  in  an  action  of  trespass,  for  destroy- 
ing a  bridge,  and  killing  and  destroying  the  hogs  and 
cattle  of  the  plaintiff,  the  court  instructed  the  jury  as 
follows :  "  That  if  they  believe,  from  the  pleadings  and 
evidence,  that  this  is  an  action  merely  for  an  alleged  in- 
jury to  the  realty,  and  that  there  is  no  evidence  that  the 
realty  is  located  in  Pottawatamie  County,  or  that  the  in- 
jury, if  any,  was  done  in  that  county,  to  said  realty,  they 
may  find  for  the  defendants,  the  venue  in  such  cases  being 
local  and  material ;"  held,  the  instruction  was  erroneous.'^ 
So  the  issue  upon  a  plea  of  mil  tiel  record  is  triable  alone 
by  the  court,  on  an  inspection  of  the  record.^    But  dis- 

'  Guptill  t.  Damon,  43  Maine,  ^  Thomason  v.  Odum,   31   Ala. 

271.  108. 

«  Berwick  v.  Horsfall,   4  C.  B.  e  gims  ».  Boynton,  33  Ala.  353. 

(N.  S.)   450.     But  see  39  Maine,  ^  Beebe   v.  Stutsman,   5   Clarke 

307.  (Iowa),  371. 

3  Pierce  v.  Randolph,  12    Tex.  »  Ridley  v.  Buchanan,  3  Swan, 

390.  555. 

*  Weathered  v.  Mays,   4    Tex. 
387. 


324  THE    LAW    OF   NEW    TRIALS.  [CII.  XL 

puted  questions  of  fact,  proper  to  be  submitted  to  a  jury, 
will  not  l)e  decided  by  a  judge,  upon  the  return  of  a  rule 
on  the  sheriff  to  show  cause.'(a) 

§  86.  Where  the  terms  of  a  contract  are  disputed,  the 
whole  matter  must  be  left  to  the  jury  with  proper  instruc- 
tions.2  So  the  execution  of  a  contract  which  is  in  evi- 
dence is  a  question  for  the  jury,  and  a  prayer  assuming 
such  execution  is  defective.^  So  the  nature  of  a  contract 
is  held  to  be  a  question  for  the  jury.  As  whether  a  par- 
ticular contract  was  one  of  affreightment  as  with  a  com- 
mon carrier,  or  a  hiring  by  the  job.^  So  whether  a  deed, 
absolute  upon  its  face,  was  actually  a  mortgage,  is,  with 
proper  instructions,  a  question  for  the  jury.^  So,  where 
the  records  of  the  probate  court  have  been  burned,  the 
question  whether  there  has  been  a  valid  order  of  sale  by 
that  court;  and,  if  there  was  such  an  order,  its  validity 
will  be  presumed.®  Whether  an  instrument  is  sealed,  is  a 
question  for  the  court;  but  whether  the  seal  is  that  of  the 
party,  is  for  the  jury.^  So,  contrary  to  the  cases  already 
cited,  it  has  been  sometimes  held,  that,  if  it  becomes 
necessary  to  prove  by  parol  the  contents  of  a  written  in- 
strument, the  construction  of  the  instrument  is  for  the 


'  Dawson   v.  Dcwau,  12   Ricli,  ^  Bemis  v.  Phelps,  41  Vt.  1. 

4i)9.  «  Sapp  V.  Newsom,  27  Tex.  537. 

2  Chapin  v.  Potter,  1  Hilt.  300.  ^  Grossman  v.  llilltown,  3  Grant, 

*  BaUimore,  ike.  v.  Kesley,  l^lCi.  225.     See  Allen  o.  Allen,  45  Peuu. 

397.  408. 

^  Fuller  V.  Bradley,  25  Penn.  120. 

(a)  The  question,  whether  certain  words  have  been  erased  from  an  in- 
dictment, is  for  the  court.  Commonwealth  v.  Davis,  11  Gray,  4.  When 
the  record  of  the  proceeding,  in  which  perjury  is  alleged,  is  produced, 
the  materiality  of  the  false  statement  is  a  question  of  law.  Cothrau  v. 
State,  39  Miss.  541.  So  whether  certain  words  in  an  information  for 
felony  were  inserted  after  it  had  been  sworn  to,  without  a  re-swearing. 
Hunter  v.  State,  29  Ind.  80.  So  the  sufSciency  of  the  records  of  a  county 
court  to  establish  the  existence  of  a  public  road.  State  v.  Prine,  25 
Iowa,  231. 


CH.  XI.]         ERRONEOUS   RULINGS   OR  INSTRUCTIONS.  325 

jury.^  So,  where  the  effect  of  a  written  a2:reement,  collate- 
rally introduced  as  evidence,  depends,  not  merely  on  the 
construction  and  meaning  of  the  instrument,  but  upon 
extrinsic  facts  and  circumstances  ;  the  inferences  of  fact 
to  be  drawn  from  it  must  be  left  to  the  jury.*  So, 
although  the  legal  effect  of  papers  is  to  be  determined  by 
the  court;  it  is  held  that,  when  documents  are  offered  in 
evidence  as  the  foundation  of  an  inference  of  fact,  whether 
such  inference  can  be  drawn  from  them  is  a  question  for 
the  jury.  "When  documents  are  offered  for  such  a  purpose, 
they,  like  a  written  correspondence,  may  be  explained  by 
extrinsic  evidence.^  And  where,  in  a  suit  upon  a  note, 
the  testimony  leaves  it  doubtful  whether  the  defendant 
was  principal  or  surety,  the  court  should  leave  it  to  the 
jury,  after  calling  their  attention  to  the  point.*  So,  where 
two  persons  jointly  purchased  land  by  articles  of  agree- 
ment, and  one  of  them  paid  part  of  the  purchase-money, 
which  was  furnished  him  by  the  other,  and  the  former 
then  assigned  to  the  latter  his  interest  in  the  articles,  who 
paid  the  balance  of  the  purchase-money;  held,  a  question 
for  the  jury,  which  was  the  real  purchaser.'  So,  whether 
interlineations  in  a  deed  were  made  before  or  after  its 
execution,  and  whether  they  altered  it  materially,  are 
questions  for  the  jury.^  Or,  in  general,  whether  an  instru- 
ment has  been  altered.^  Or  whether  pencil-marks  on  a 
note  amount  to  a  cancellation.^  So  upon  an  issue  devisavit 
vel  non,  the  document  presented  was  claimed  to  be  a  holo- 
gra^hic  will.  It  was  found  among  the  papers  of  the  tes- 
tator, but  among  a  package  marked  by  the  testator  "  not 
valuable."  The  court  charged  that  this  was  almost  an 
irresistible  circumstance  against  the  will.  Held,  the  court 
encroached  on  the  province  of  the  jury,  and  the  charge 

'  Moore  v.  Holland,  39  Maine,        ^  cVow  v.  Crow,  29  Penn.  216. 
807.  ^  Reinhart  v.  Miller,  22  Geo.  402. 

2  Barreda  v.  Silsbee,  21  How.  U.        '  Jones  v.  Ireland,  4  Iowa.  63  ; 
S.  146.  Ault  V.  Fleraino;,  7  Clarke,  143. 

3  Primm  v.  Haren,  27  Mis.  205.  s  Stockton  v.  Graves,  10  lud.  294. 
«  Wyleyi!.  Stanford,  22  Geo.  385. 


326  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

was  eiToncous.'  So,  where,  in  an  action  of  ejectment  to 
enforce  the  specific  performance  of  a  contract  for  the  sale 
of  land,  there  are  controverted  facts,  it  is  error  for  the 
court  to  withdraw  the  case  from  the  jury.^ 

§  87.  The  construQtion  of  a  deed  is  not  to  be  submitted 
to  a  jury,  without  specific  directions  that  they  shall  only 
determine  certain  matters  of  fact.^(a)  (See  §  90.)  So  it 
is  the  duty  of  the  court,  in  a  case  calling  for  it,  to  instruct 
the  jury  what  inferences  may  be  legally  drawn  from  the 
writings  in  question,  coupled  with  the  conduct  of  the 
parties  in  exposition  of  them ;  the  legal  sufficiency  of  proof 
being  for  the  court,  the  moral  weight  of  legally  sufiicient 
evidence  being  for  the  jury.'*  So,  although,  in  general,  the 
question  whether  a  contract  has  been  executed  only  as  an 
escrow  is  for  the  jury,  because  it  generally  depends  on  facts 
proved  by  oral  evidence;  yet,  where  the  evidence  is  in 
writing,  as  where  the  contract,  signed  by  one  party  (even 
after  signature  by  the  agent  of  the  other),  is  sent  inclosed 
in,  or  is  accompanied  by,  a  letter,  explaining  that  it  is 
only  signed  on  condition  of  something  being  done — as, 
for  example,  a  counterpart  being  executed  by  the  other 
party ;  the  construction  of  such  evidence  is  for  the  j  udge.' 


§  88.  Where  some  of  the  terms  in  which  a  contract  is 
expressed  are  words  of  science  or  art,  which  require  the 
evidence  of  experts  to  explain  them;  the  jury,  of  neces- 


>  Mnrr  v.  Marr,  5  Sneed,  885.  •  Wheeler  v.  Schroeder,  4  R.  I. 

2  Williams  v.  Bcntley,  29  Penn.  388. 

272.  ^  Furness  v.  Meek,  3  Hurl.  & 

3  Morse  v.  Weymouth,  2  Wms.  Nor.  907. 
824. 


(a)  When  a  jury  have  fixed  the  meaning  of  words,  the  legal  effects 
and  consequences  are  to  be  determined  by  the  court.  Warnick  v.  Gro- 
sholz,  3  Grant,  (Ponn.)  234;  Stokes  v.  Burrell,  ib.  241. 


CH.  XI.]         ERRONEOUS    RULINGS   OR   INSTRUCTIONS.  327 

sity,  must  pass  on  the  meaning  of  those  words  ;(a)  but, 
being  ascertained  by  them,  the  duty  of  the  court  is  still 
to  give  a  construction  to  the  contract.  "Where  there  are 
not  such  terms,  the  contract  is  entirely  with  the  court.^(6) 

'  Silverthorne  v.  Fowle,  4  Jones,  362. 

(a)  Thus  upon  the  meaning  in  a  written  contract  of  the  word  "team," 
as  explained  by  oral  evidence.  Ganson  v.  Madigan,  1.5  Wis.  144.  The 
plaintiffs,  in  an  action  on  a  contract  of  sale,  agreed,  through  a  broker,  to 
sell  and  deliver  to  the  defendants  "one  hundred  and  fifty  tons  of  soft 
English  lead  of  W.,  P.,  and  W.  brand,"  to  arrive  by  a  specified  vessel. 
The  defendants,  on  arrival,  refused  to  receive  it,  on  the  ground  that  it 
was  not  the  brand  called  for  by  the  bought  and  sold  note.  There  being 
some  evidence  tending  to  prove  that  lead  of  this  brand,  "W.,  P.,  and 
W.,"  had  been  seen  in  the  New  York  market ;  held,  this  rendered  it 
proper  to  submit  to  the  jury  the  question  whether  such  a  brand  was  in 
existence,  so  as  to  enable  the  plaintiffs  to  comply  literally  with  the  con- 
tract. Also,  that  there  was  no  error  in  leaving  to  the  jury  the  question, 
whether  "soft  English  lead"  was  understood,  in  commerce,  to  mean  soft 
lead  made  in  England,  without  regard  to  the  place  the  ore  came  from. 
Pollen  V.  Le  Roy,  30  N.  Y.  549. 

(&)  A  contract  for  the  purchase  of  foreign  wheat  provided  for  pay- 
ment "  in  exchange  for  shipping  documents."  Held,  the  question,  whe- 
ther the  delivery  of  such  documents  as  were  here  delivered  was  a  compli- 
ance with  the  contract,  was  for  the  jury.  Tamvaco  v.  Lucas,  3  B.  &  S. 
89 ;  ib.  185.  Goods  were  put  on  board  a  ship  consigned  for  Calcutta,  at 
39s.  per  ton,  "  payable  in  London."  Held,  it  was  for  the  jury  to  say, 
from  the  surrounding  circumstances,  whether  the  contract  was  a  contract 
for  "  freight"  contingent  on  the  ship's  arrival  at  her  destination,  or  for  a 
sum  payable  on  the  receipt  of  the  goods  on  board  of  her.  Lidgett  v.  Perrin, 
11  C.  B.  (N.  S.)  362.  Where  the  proof  shows  that  a  parol  contract  had 
been  first  agreed  upon,  and  that  afterwards  a  written  memorandum  was 
signed ;  a  party  has  the  right  to  have  the  question,  whether  the  written 
contract  embraces  all  the  terms  of  such  parol  contract,  submitted  to  the 
jury.  Cobb  v.  Wallace,  5  Cold.  539.  Where  there  is  upon  the  whole 
evidence  a  dispute  whether  the  contract  was  reduced  to  writing,  it  may  be 
necessary  to  receive  evidence,  both  upon  this  precise  question,  and  as  to 
those  declarations  and  acts  of  the  parties  which  are  claimed  to  have  con- 
stituted the  verbal  contract,  and  also  as  to  the  contents  of  the  supposed 
written  instrument;  and  to  submit  to  the  jury  whether  the  contract  was 
in  writing,  with  instructions,  if  they  so  find,  to  consider  only  that  part  of 
the  evidence  which  tends  to  show  the  contents  of  the  writing,  in  deter- 


328  THE   LAAV    OF   NEW    TRIALS.  [CH.  XI. 

§  89.  The  construction  of  a  patent  is  ordinarily  a  ques- 
tion of  law  for  the  court,  and  not  for  the  jury.'(«)  The 
meaning  of  a  patent,  as  of  other  docanients,  depends  upon 
its  terras,  and  not  on  matters  of  fact.  But,  where  an  am- 
biguity is  raised  by  evidence  dehors  the  document,  which 

'  Bovill  V.  Pimm,  36  Eng.  L.  and  Eq.  441. 

mining  the  terms  of  the  contract.  Jenness  v.  Berry,  17  N.  H.  549.  It  ■ 
being  in  evidence  that  A.,  deceased,  had  promised  to  pay  the  plaintiff  the 
debt  claimed  from  the  defendant,  and  that  the  plaintiff,  having  met  the 
defendant  at  a  town  meeting,  to  his  inquiry,  "  Has  A.  paid  you  that 
i^lOO?"  replied,  "It  is  settled;"  and  there  being  conflicting  testimony 
whether  the  commissioners  on  his  estate  had  reckoned  it  as  unpaid :  it 
was  proper  to  charge  the  jury,  that,  although  A.'s  promise  was  upon  a 
valid  consideration  and  capable  of  being  enforced  by  law,  it  would  not 
alone  relieve  the  defendant ;  that  it  was  for  the  jury  to  say  what  was  the 
fair  meaning  of  the  language,  and  how  the  defendant  under  the  cir- 
cumstances understood  it,  and,  if  these  were,  that  A.  had  adjusted  the 
debt,  and  that  the  defendant  need  not  look  to  it  further,  their  verdict 
should  be  for  the  defendant,  even  though  after  A.'s  death  the  defendant 
recognized  and  offered  to  pay  the  debt ;  but,  if  they  found  that  the  plain- 
tiff  meant  simply  that  A.  had  promised  to  pay  him,  and  the  fair  meaning 
of  the  language,  under  the  circumstances,  would  carry  only  that  sense 
to  the  defendant's  mind,  then  their  verdict  should  be  for  the  plaintiff, 
unless  the  defendant  prevailed  on  some  of  his  otiier  grounds.  Williams 
V.  Heywood,  41  Vt.  279.  Whether -the  business  of  putting  together 
frames  of  chairs  is  "  manufacturing,"  within  the  meaning  of  an  insurance 
policy,  is  a  question  for  the  jury.  Appleby  v.  Firemen's,  45  Barb.  454. 
The  defendant  sold  the  plaintiff  all  his  "apparatus  for  making  soap — all 
ashes  and  soap  on  hand,"  &c.,  "also  all  his  trade  and  customers."  Held, 
the  last  clause  contains  no  such  latent  ambiguity,  as  would  require  that 
the  construction  of  the  contract  should  be  submitted  to  a  jury,  with  parol 
testimony  tending  to  show  the  intention  of  the  parties.  Warren  v. 
Jones,  51  Maine,  146.  Whether  town  lots  owned  by  a  railroad  are  indis- 
pensable to  the  enjoyment  of  its  franchise,  .so  as  to  be  bound  by  a  mort- 
gage of  the  road  "  with  its  corporate  privileges  and  appurtenances,"  is  a 
question  for  the  jury.     Shamokin  v.  Livermore,  47  Penn.  465. 

(a)  It  is  the  duty  of  the  court  to  construe  a  patent,  and  to  instruct 
the  jury  in  what  the  invention  consists.  Cahoon  v.  Ring,  1  Cliff.  592. 
In  an  action  upon  a  note,  given  in  consideration  of  the  assignment  of  a 
patent,  the  question  whether  the  inveution  was  useful  must  be  left  to  the 
jury,  under  proper  instructions.     Ilowe  v.  Blanchard,  18  Wis.  441. 


CH.  XI.]        ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  329 

is  plain  upon  the  face  of  it,  the  ambiguity  being  as  to  a 
term  which  imports  one  thing  in  a  scientific  sense,  and 
another  in  a  commercial  sense;  it  is  left  doubtful,  whether 
the  question  is  for  the  judge  or  the  jury.^ 

§  90.  As  has  been  seen  (§  87),  construction  of  deeds  is 
for  the  court ;  and,  though  the  jury  must  ascertain  as  a  fact 
where  the  boundaries  of  a  grant  are,  it  is  the  duty  of  the 
court  to  declare  what  the  boundaries  are  that  control  the 
location.^ 

§  91.  "Where  several  orders  for  manufactured  articles 
were  given  by  the  vendees,  to  some  of  which  the  vendors 
replied,  that  they  should  be  filled  at  the  earliest  day ;  to 
others,  that  the  orders  had  been  entered  on  their  books, 
to  be  filled  at  the  times  named,  the  vendees  knowing  that 
all  orders  were  so  entered  and  filled  in  succession,  or  pro 
rata,  the  vendees'  letters  also  showing  that  they  recognized 
the  above  custom:  an  instruction,  that  from  the  corre- 
spondence the  vendees  were  chargeable  with  notice  of  the 
custom,  was  held  correct,  as  it  left  to  the  jury  to  decide 
whether  the  letters  produced  were  those  of  the  parties, 
and  it  determined  the  construction  and  eifect  of  the 
writings,  if  proved,  which  is  always  a  question  for  the 
court.^ 

§  92.  It  is  the  exclusive  province  of  the  jury  to  find 
whether  or  not  a  [written]  contract  was  made,  but  the 
true  intent  and  obligation  they  must  find,  if  at  all,  under 
the  instruction  of  the  court,  and  a  mistake  in  such  instruc- 
tion is  error.*  So  the  jury  are  bound  to  accept  the  legal 
construction  put  upon  the  words  of  a  will  by  the  court.^ 

'  Hills  ».  London,  &c.,  3  Hurl.  &  ^  Bliven  v.  New  England,  &c., 
Nor.  920.  23  How.  U.  S.  420. 

2  Wliittelsey  v.  Kellogg,  28  Mis.  *  Illinois,  &c.  v.  Cassell,  17  111. 
404.  389. 

2  Downing  v.  Bain,  24  Geo.  372. 


330  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

§  93.  A  question  of  usage  is  for  the  jury.^a)  Thus, 
whether  articles  carried  in  a  passenger's  trunk  are  pro- 
perly denominated  baggage^  that  is,  such  as  travellers  on 
their  journey  usually  carry  in  their  trunks.^  But  the 
court  may  properly  instruct  the  jury,  what  will  amount 
to  a  sale  of  a  raft  of  lumber,  and  refer  to  a  custom  of  the 
river,  making  a  measurement,  certificate,  and  payment 
necessary  to  complete  the  contract.^  And  the  reasonable- 
ness of  a  regulation  or  custom,  on  rail-trains,  which 
requires  passengers  for  way-stations  to  surrender  their 
tickets,  immediately  after  leaving  the  principal  or  regu- 
lar stopping-place,  nearest  their  destination,  is  a  question 
of  law.* 

§  94.  A  late  writer  remarks,  "  In  general,  it  may  be 
said  that  questions  of  reasonableness,  other  than  that  of 
time,  are  questions  of  fact  for  the  jury." "(6) 

»  Sultana  v.  Chapman,  5  Wis.  ^  Erisraan  v.  Walters,  36  Penn. 
454.  467. 

2  Grant  B.Newton,  1 E.  D.  Smith,  *  Vedder  v.  Fellows,  20  N.  Y.  (6 
95.  Smith)  126. 

5  3  Pars,  on  Con.  47. 

(a)  A  note  was  indorsed  "pay  to  A.,  or  order,  for  collection,"  and,  in  a 
suit  thereon,  the  question  arose  whether  the  title  was  thereby  passed  to 
the  indorsees.  On  the  one  side,  one  of  the  indorsers  was  offered,  to  show 
that  according  to  their  course  of  business  they  did  not  intend  by  such 
indorsements  to  pass  the  title.  Upon  the  other  side,  evidence  was  intro- 
duced, that,  by  the  general  custom  of  bankers,  such  an  indorsement 
would  pass  the  title.  Held,  the  jury  should  be  instructed  to  interpret 
the  indorsement  upon  the  face  of  the  paper  in  connection  with  the  ordi- 
nary course  of  business  between  the  indorsers  and  indorsee.  Sweeny  v. 
Easter,  1  Wall.  166.  The  question,  whether  a  person  who  removes  hia 
family  to  the  house  of  a  relative,  and  absents  himself  from  the  country, 
has  his  usual  place  of  abode  at  such  house,  within  the  meaning  of  the 
law  governing  service  of  process,  is  for  the  jury.  The  presumption  in 
such  case  is,  that  such  house  is  not  his  usual  place  of  abode.  Adams  v. 
Abernathy,  37  Mis.  196. 

(6)  Thus,  whether  the  use  of  a  stream  to  carry  off  a  manufacturer's 
waste  is  reasonable  or  not,  is  a  question  for  the  jury;  and,  in  determining 


CH.  XI.]         ERRONEOUS   RULINGS   OR  INSTRUCTIONS.  331 

§  95.  The  question  of  reasonable  time  also  is  sometimes 
held  to  be  for  the  juiy.^  Thus,  where  hogs  delivered  to 
be  slaughtered  were  not  slaughtered  till  several  days  after 
delivery,  and,  the  weather  then  being  unsuitable,  a  loss 
ensued;  it  was  held  to  be  for  the  jury  to  decide  what  was 
the  cause  of  the  spoiling  of  the  meat,  and  whether  it  was 
the  defendant's  fault.^  So  a  contract  under  seal  was  made, 
in  January,  1853,  to  purchase  land  at  a  fixed  price,  no 
time  of  payment  being  specified.  The  purchaser  entered, 
and,  no  part  of  the  purchase-money  being  paid,  the  vendor, 
in  1854  or  1855,  gave  him  notice  to  quit.  In  trespass  to 
try  title,  held,  what  was  reasonable  time  for  the  payment 
of  the  purchase-money  was  a  question  for  the  jury.^  So 
whether  an  award  was  made  within  a  reasonable  time, 
within  the  intendment  of  the  parties.*  If  the  facts  are 
not  clearly  established,  or  if  the  question  of  time  depends 
upon  other  controverted  facts,  or  where  the  motives  of  the 

1  Meek  v.  Spencer,  8  Tnd.  118  ;  W.  445  ;  Howe  v.  Huntington,  15 

Hill  V.    Hobart,    16    Maine,    164 ;  Maine,  350. 

Cocker  v.  Franklin,  &c.,  3  Samn.  ^  Ferguson  v.  Fox,  1  Met.  (Ky). 

53C  ;  Steagall  v.  McKellar,  20  Tex.  83. 

265  ;  Greene  v.  Dingley,  24  Maine,  ^  Hays  v.  Hays,  10  Rich.  419. 

131  ;  Ellis  V.  Thompson,   3  M.  &  *  Haywood  v.  Harmon,    17  HI. 

477. 


it,  evidence  of  usage  in  the  deposit  of  similar  waste  is  not  admissible. 
Hayes  v.  Waldron,  44  N.  H.  580.  The  reasonableness  of  a  railroad 
regulation  is  purely  a  question  of  law,  although  testimony  thereon  is  ad- 
missible. Illinois  V.  Whittemore,  43  111.  420.  Whether  the  whole  of 
the  corn,  which  the  defendant  had  on  hand  at  the  time  of  a  levy,  was 
necessary  for  family  use,  and  was  therefore  exempt  from  levy,  was  a 
proper  question  for  the  jury.  Atkinson  v.  Catcher.  23  Ark.  101.  In  an 
action  for  injury  to  the  plaintiff  by  being  thrown  from  his  carriage,  in 
consequence  of  his  horse  becoming  frightened  at  the  loud  and  sudden 
blowing  of  a  whistle  at  a  railroad  crossing  near  the  station  ;  held,  while 
the  railroad  had  a  right  to  establish  reasonable  signals  for  the  starting 
of  trains,  it  was  for  the  jury  to  determine,  upon  the  circumstances  of  a 
particular  case,  whether  such  sounding  was  a  reasonable  signal,  and 
within  the  rule  of  ordinary  care.    Hill  v.  Portland,  55  Maine,  438. 


332  THE   LAW   OF   NEW    TRIALS.  [CH.  XI. 

party  enter  into  the  question,  it  has  been  said  that  the 
whole  must  necessarily  be  submitted  to  a  jury.\a) 

§  95a.  But  on  the  other  hand  it  is  laid  down,  that 
"  what  is  a  reasonable  time  is  a  question  of  law  for  the 
court.  They  will  consider  all  the  facts  and  circumstances 
of  the  case  in  determining  this,  and  if  any  facts  bearing 
upon  this  point  are  in  question,  it  will  be  the  province  of 
the  jury  to  settle  those  facts,  although  the  influence  of 
the  facts  when  determined,  upon  the  question  of  reason- 
ableness, remains  to  be  determined  by  the  court."^ 

§  96.  The  point  referred  to  arose  in  a  late  case  in  Mas- 
sachusetts, where  it  was  held  that  the  question,  whether 
repairs  made  by  insurers,  under  a  right  reserved  in  the 
policy,  are  made  within  a  reasonable  time,  depending  on 
the  dates  of  various  notices  given  by  the  parties  to  each 
other,  the  delay  occasioned  by  the  sickness  and  death  of 
workmen  employed,  and  the  peculiar  nature  of  the  pro- 
perty, must  be  submitted  to  the  jury,  although  the  par- 
ticular circumstances  are  not  disputed.^     In  that  case,  the 

'  Hill  V.  TTohart,  16  Maine,  1C4 ;  '  Haskins  v.  Ilamilton,  &c.,  5 
2  Pars,  on  Con.  174,  n.  Gray,  4o2. 

2  2  Pars,  on  Con.  47. 


(rt)  It  is  error  to  leave  to  the  jury  to  find  the  meaning  of  the  word 
"  immediately"  as  used  in  a  contract.  Streeter  v.  Streeter,  43  111.  155. 
Where  the  question  of  reasonable  time  for  performance  of  a  contract 
depends  upon  a  variety  of  facts  and  circumstances  peculiar  to  the  case, 
it  is  for  the  jury  to  determine,  after  instructions,  as  to  the  principles  of 
law  applicable  to  the  case.  Luckhart  v.  Ogden,  30  Cal.  547.  Where 
thirteen  or  fourteen  days  elapsed  after  the  time  it  was  claimed  a  bank 
paid  out  a  counterfeit  bill,  and  four  or  five  days  after  it  was  discovered 
to  be  counterfeit,  before  any  ofrer  was  made  to  return  it ;  held,  it  was  a 
question  for  the  jury,  whether  the  offer  was  under  all  the  circumstances 
made  in  a  reasonable  time.  Union  v.  Baldenwick,  45  111.  375.  An  action 
was  brought  upon  an  order  which  had  been  accepted  by  the  defendant  to 
be  paid  "  when  he  had  sold  certain  logs."  Held,  that  the  question  of 
unreasonable  delay  in  making  the  sale  was  properly  left  to  the  jury. 
Wilder  v.  Sprague,  50  Maine,  354. 


CH.  XL]        ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  333 

following  abstract  of  other  leading  cases  on  the  subject  is 
given  by  Judge  Metcalf.  "  In  Tindal  v.  Brown,  1  T.  R. 
168,  Lord  Mansfield  said:  'What  is  reasonable  notice  is 
partly  a  question  of  fact  and  partly  a  question  of  law. 
But  whenever  a  rule  can  be  laid  down  with  respect  to 
this  reasonableness,  that  should  be  decided  by  the  court, 
and  adhered  to  by  every  one  for  the  sake  of  certainty.' 
In  Chesapeake  Ins.  Co.  v.  Stark,  6  Cranch,  273,  which  was 
an  action  on  a  policy  of  marine  insurance,  where  one 
question  was,  whether  the  assured  had  made  an  abandon- 
ment in  a  reasonable  time.  Chief- Justice  Marshall  said : 
'The  law  is  settled,  that  an  abandonment,  to  be  effectual, 
must  be  made  in  a  reasonable  time;  but  what  time  is 
reasonable  is  a  question  compounded  of  fact  and  law, 
which  has  not  yet  been  reduced  to  such  certainty  as  to 
enable  the  court  to  pronounce  upon  it  without  the  aid  of 
a  jury.  Certainly  the  delay  may  be  so  great  as  to  enable 
every  man  to  declare,  without  hesitation,  that  it  is  un- 
reasonable ;  or  the  abandonment  may  be  so  immediate, 
that  all  will  admit  it  to  have  been  made  in  reasonable 
time ;  but  there  may  be  such  a  medium  between  these  ex- 
tremes, as  to  render  it  doubtful  whether  the  delay  has 
been  reasonable  or  otherwise.  If  it  was  a  mere  question 
of  law,  which  the  court  might  decide,  then  the  law  would 
determine,  to  a  day  or  an  hour,  on  the  time  left  for  de- 
liberation, after  receiving  notice  of  the  loss.  But  the 
law  has  not  so  determined ;  it  therefore  remains  a  question 
compounded  of  fact  and  law,  which  must  be  found  by  a 
jury,  under  the  direction  of  the  court.'  The  application 
of  these  principles  to  the  present  case  is  too  obvious  to 
require  illustration.  Besides,  there  are  numerous  decisions 
from  which  this  case  cannot  be  distinguished,  showing 
that  the  question  of  reasonable  time  was  peculiarly  proper 
for  the  consideration  of  the  jury.  In  Facey  v.  Hurdom, 
3  B.  &  C.  213,  and  5  D.  &  R.  68,  the  question  was,  whether 
after  the  setting  out  of  tithe  the  crop  had  been  left  on 
the  crround  a  reasonable  time  for  the  tithe-owner  to  com- 


334  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

pare  his  tenth  with  the  residue.  Bayley,  J.,  said:  'There 
certainly  are  cases  where  it  is  for  the  judge  to  say  what 
is  a  reasonable  time.  But  in  this  instance  the  question 
depended  upon  a  variety  of  circumstances,  such  as  the 
residence  of  the  respective  parties,  the  time  when  notice 
was  given  that  the  corn  would  be  tithed,  the  state  of  the 
weather,  and  other  things  most  proper  for  the  considera- 
tion of  the  jury;  and  I  think  that  the  question  was  pro- 
perly left  to  them.'  In  Cocker  v.  Franklin  Ilemp  and 
Flax  Manuf 'g  Co.,  3  Sumner,  530,  the  question  whether 
goods  that  had  been  ordered  from  England,  had  been  fur- 
nished in  a  reasonable  time,  was  submitted  to  the  jury. 
Story,  J.,  remarked:  'The  whole  question  now  before  the 
jury  is,  whether  these  articles  were  manufactured  and 
offered  to  be  delivered  within  a  reasonable  time.  That 
reasonable  time  must  be  judged  of  by  all  the  circum- 
stances, and,  of  course,  with  all  the  natural  calculations, 
which  might  fairly  arise  from  the  distance  of  the  countries, 
the  season  of  the  year,  the  state  of  the  markets  and  orders, 
the  pressure  of  business,  and  the  common  disappointments 
and  retardations  incident  to  the  manufacture  of  any  new 
article.'  "^ 

§  96a.  A  party  cannot  object  to  an  instruction  of  the 
court,  submitting  to  the  jury  the  question  of  what  consti- 
tutes reasonable  use,  when  by  his  own  prayer  such  question 
is  so  submitted,  and  when  he  has  also  taken  issue  on  a 
plea  alleging  such  use.^ 

§  97.  Where  the  law  allows  a  certain  percentage  to  a 
trustee,  it  is  no  error  for  the  court  to  charge  the  jury, 
that  such  percentage  would  be  a  reasonable  compensation 
for  the  services  of  such  trustee.^ 

§  98.  The  question,  whether  a  certain  transaction  con- 

'  5  Gray,  438.  ^  Burney  v.  Spear,  17  Geo.  323. 

'  lless  V.  Newcomer,  7  Md.  325. 


CH.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  335 

stitutes  payment  of  a  debt,  is  generally  one  of  fact  for  the 
jury,  and  not  of  law  on  the  facts  proved. '(a)  So  whether 
a  note,  given  for  the  settlement  of  a  suit  against  a  third 
person,  is  an  extinguishment  of  the  original  claim,  or 
collateral  to  it.^  So,  where  a  third  person  pays  the  sum 
due  on  a  note  and  takes  it  into  his  possession,  whether  he 
intended  to  pay  it  for  the  accommodation  of  the  maker, 
or  to  purchase  it.'  So,  in  a  suit  on  instalments  for  stock, 
whether  payments  were  made  on  a  new  issue,  or  on  the 
subscription  sued  on.*  So,  in  an  action  for  contribution 
between  two  co-sureties,  if  the  evidence  shows  that  the 
entire  debt,  for  which  the  plaintiff,  defendant,  and  a  third 
co-surety  were  bound,  was  paid  oif  by  the  plaintiff  and 
such  third  co-surety,  but  does  not  show  the  respective  pro- 
portions paid  by  each ;  the  court  should  not  exclude  the 
evidence  on  the  ground  of  its  insufficiency,  nor  charge 
the  jury  that  it  is  insufficient  to  authorize  a  recovery  by 
the  plaintiff,  but  should  leave  its  weight  to  the  jury.'  So, 
where  there  are  two  debts,  one  of  which  is  barred  by  the 
statute  of  limitations,  and  there  is  a  part  payment  not 
specifically  appropriated  by  the  debtor ;  whether  the  pay- 
ment was  made  generally,  on  account  of  whatever  might 
be  due  at  the  time,  or  on  a  particular  account.®  So  the 
question,  to  what  particular  debt  or  debts  a  general 
acknowledgment  applies,  in  order  to  avoid  the  statute.^ 
(See  §  101.) 

'  Comstock  V.  Savage,  27  Conn.  *  McDougald  v.  Dawson,  30  Ala. 

184 ;  Williams  v.  Bentley,  29  Penn.  553. 

272 ;  Biniou  v.  Miller,  27  Geo.  78.  ^  Walker  v.  Butler,  37  Eng.  Law 

2  Wilson  V.  Hanson,  20   N.  H.  and  Eq.  13. 

875.  ''  Kimball  v.  Baxter's  Estate,  1 

*  Runyon  v.  Clark,  4  Jones,  52.  Williams,  628.     See  3  Jones,  504. 

*  Indiana,  «&c.  v.  Cavett,  12  Ind. 
316. 

(a)  In  an  action  to  recover  money  claimed  to  have  been  loaned  to  the 
defendant,  if  there  is  any  evidence  tending  to  show  that  a  payment  to 
A.  was  a  loan  to  the  defendant,  although  made  without  the  latter's 
assent ;  it  is  error  to  charge  the  jury,  that,  if  the  money  was  paid  to  A. 
without  the  defendant's  assent,  there  was  no  loan.  Clark  v.  McGraw,  14 
Mich.  139. 


336  THE    LAW    OF   NEAV    TRIALS.  [ClI.  XI. 

§  09.  Under  some  circumstances,  however,  payment  is 
held  a  question  of  law.^  Thus  a  motion,  that  nji.fa.  shall 
be  entered  satisfied,  because  paid,  need  not  be  determined 
with  a  jury,  but  may  be  by  the  court  alone.^(rt) 

§  100.  It  is  held  to  be  a  question  of  law,  what  evidence 
will  repel  the  presumption  of  payment  arising  from  the 
lapse  of  time.  Though,  if  the  question  is  left  to  the 
jury,  but  correctly  decided  by  them,  a  new  trial  will  not 
be  granted.3(&)  So,  although  strictly  the  presumption  of 
payment  and  conveyance  of  land  under  a  contract,  arising 
from  lapse  of  time,  is  a  matter  for  the  jury,  yet,  where 
the  weight  of  proof  is  so  decisive  that,  if  the  jury  had 
found  against  it  the  court  would  have  granted  a  new  trial, 
the  court  may  draw  the  inference  and  grant  a  nonsuit.'* 

§  101.  A  new  trial  was  granted  for  an  instruction,  that, 
from  the  whole  testimony,  the  action  was  not  barred  by 
the  statute  of  limitations.*  But  a  new  trial  was  refused, 
where,  in  answer  to  the  statute  of  limitations,  a  letter  of 
the  defendant  was  offered  in  evidence,  and  the  judge  in- 

•  Frost  V.  Martin,  9  Fost.  30G.  *  Brotherson  v.   Jones,    Hill    & 

«  Tucker  ».  Kespass,  28  Geo.  G13.  Denio,  171. 

3  Woodbury  v.  Tavlor,  3  Jones,  ^  Fisher  v.  Duncan,  1  Hen.  &  M. 

504.     See  1  Wms.  G28.  563. 


(a)  AVhether  the  satisfaction  and  discharge  of  a  mortgage,  by  taking 
other  security;  was  a  payment  of  the  debt,  or  a  mere  change  of  securities, 
is  a  question  for  the  court,  when  deducible  from  a  written  agreement ; 
and  the  refusal  to  submit  the  question  of  intention  to  the  jury  was  not 
error.  Heath  v.  Page,  48  Penn.  i;50.  Where  there  is  afTirniative  proof, 
on  the  part  of  the  creditor,  that  a  bond  more  than  twenty-one  years  old 
has  not  been  paid;  its  sufficiency  to  rebut  the  presumption  of  payment 
is  a  question  for  the  court.     Reed  v.  Reed,  46  Penn.  239. 

(&)  A  new  promise  to  pay  is  a  contract,  and  whether  a  contract  has 
been  made  is,  at  last,  a  question  of  law.  It  is  for  the  jury  to  ascertain 
what  passed  between  the  parties,  and,  if  this  does  not  amount  to  a  con- 
tract, it  is  the  province  of  the  court  so  to  declare.  Erskine  v.  Wilson, 
27  Tex.  117. 


CH.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  337 

structed  the  jury  that  after  the  production  of  this  letter 
the  statute  was  entirely  out  of  the  question,  the  court 
being  of  opinion  that  the  letter  was  a  clear  acknowledg- 
ment of  an  actually  existing  debt.'(a)  (See  §  98.) 

§  102.  Whether  a  transaction  concerning  a  note  is  a 
sale  of  the  note  or  an  usurious  loan,  is  held  a  question  for 
the  jury .2  So  where  a  note  was  negotiated  in  ]^ew  York, 
at  a  rate  of  interest  which  in  Isew  Jersey  would  be 
usurious,  between  parties  resident  in  New  Jersey ;  held, 
not  conclusive  evidence  that  the  transaction  was  in  eva- 
sion of  the  usury  laws,  but  a  question  for  the  jury,  on  all 
the  evidence.^ 

§  108.  Where  the  consideration  of  a  note  is  disputed, 
and  there  is  conflicting  testimony,  the  jury  must  decide 
the  point.*  So  whether  the  contingency  has  happened 
upon  which  a  draft  is  payable.' 

§  104.  Where  a  party,  having  abandoned  his  contract  to 
work  for  a  year,  on  the  ground  of  ill  usage,  seeks  to  re- 

>  Colledge  v.  Hone,  10  Moo.  481.        '  Durant  v.  Banta,  3  Dutch.  624. 
2  Mix  «."Madisou,  &c.,  11  lud.         *  Swain  v.  Etling,  32  Peun.  486. 
117.  ^  Nagle  v.  Homer,  8  Cal.  353. 

(a)  Whether  such  letter  refers  to  the  debt  is  a  question  for  the  jury. 
Dickinson  v.  Lott,  29  Tex.  172.  In  an  action  on  an  outlawed  note,  the 
defendant  asked  the  court  to  submit  to  the  jury  the  question  whether 
there  was  a  new  promise  arising  from  a  part-payment,  in  connection  with 
the  attending  circumstances.  Held,  there  was  no  error  in  refusing,  as 
the  circumstances  warranted  the  court  in  holding,  that  the  defendant,  by 
such  payment,  intended  to  recognize  his  liability.  Miller  v.  Talcott,  46 
Barb.  167.  It  should  be  left  to  the  jury  to  say,  in  respect  to  an  agree- 
ment relied  on  to  take  a  debt  out  of  the  statute,  not  only  whether  it  refers 
to  the  debt,  but  also  whether  it  recognizes  the  debt  as  still  due.  Robin- 
son V.  Burton,  1  Houst.  540.  In  ejectment,  it  is  error  to  charge  that,  if 
the  defendant  held  the  laud  for  twenty  years,  the  plaintiff  cannot  re- 
cover. The  question  should  have  been  left  to  the  jury,  whether  the 
possession  was  held  adversely  and  with  claim  of  title.  Davis  c.  Furlow'^, 
27  Md.  536. 
22 


338  THE    LAW    OF   NEW    TRIALS.  [CIL  XI. 

cover  under  a  quantum  meruit ;  tlic  question,  wlietlier  the 
ill  usage  was  sufficient  to  justify  the  abandonment,  should 
be  left  to  the  jury.  It  is  erroneous  in  such  case  to  charge 
the  jury,  that,  "  if  they  believe  the  fact  of  ill  usage  made 
out,  the  plaintiff  is  entitled  to  recover."^ 

§  105.  The  evidence  of  a  promise  to  pay  the  debt  of 
another  must  be  clear,  explicit,  and  certain ;  but  whether 
it  be  so  or  not,  is  a  question  for  the  jury.^  So  in  an  action 
of  assumpsit,  in  which  the  defendant's  promise  rests  on 
parol  evidence,  it  is  error,  even  if  the  consideration  for  it 
be  adequate,  to  take  from  the  jury  the  question  of  fact 
as  to  the  promise,  and  to  charge  that,  if  the  evidence  be 
believed,  the  plaintiff  is  entitled  to  recover.^  So,  if  a 
party  is  presented  with  a  bill,  and  admits  it  to  be  correct, 
but  states  that  he  has  a  bill  on  his  part  against  the  claim- 
ant, which  he  wishes  to  have  settled;  the  whole  conver- 
sation may  be  left  to  the  jury.* 

§  106.  It  is  a  question  for  the  jury,  upon  all  the  evi- 
dence, to  whom  the  credit  was  given,  where  goods  were 
furnished  under  the  following  order:  "Please  let  A.  B. 
have  the  fulling  mill,  crank,  and  other  work  for  C.  D. — 
E.  F."*  So,  upon  a  proceeding  to  enforce  a  lien  for  build- 
ing materials,  whether  the  materials  w^ere  furnished  solely 
upon  the  credit  of  the  contractor,  or  w4iolly  or  partly  on 
that  of  the  building;  and  this  though  the  contractor's 
note  was  given  for  the  price.^  So  where  parents  have 
lived  wdth  a  step-son,  the  jury  is  to  decide,  on  the  facts 
proved,  whether  they  should  pay  for  their  board  or  not.^ 
So  a  person  rendered  services  to  a  corporation  as  treasurer, 
having  been  regularly  elected  to  that  office,  but  with  no 
arrangement  for  compensation.    Evidence  was  introduced, 

'  Erving  v.  Ingram,  4  Zabr.  520.        ^  Tnrton  v.  Bnrke,  4  Wis.  119. 

2  Kuns'p.  Y()unl,^  ?A  Pcnn.  GO.  e  Odd  Fellows',  &c.  v.  Masser,  24 

3  Tobin  V.  Groui:,  ;U  I'enn.  440.      Pcnn.  507. 

*  Pearson   v.  Chapman,    21    111.        i  Myers  v.  Malcom,  20  111.  G21. 
650. 


CH.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  339 

tending  to  prove  that  lie  had  a  connection  as  partner  with 
another  officer  of  the  corporation,  from  which  he  expected 
incidental  compensation  for  his  services  to  the  corpora- 
tion, and  that  he  did  not  make  any  claim  on  the  corpora- 
tion until  some  time  after  his  term  of  office  expired. 
Held,  it  was  a  proper  question  for  the  jury,  whether  such 
services  were  gratuitous.^ 

§  107.  When  the  facts  are  found,  what  is  or  is  not 
sufficient  notice,  is  a  question  for  the  court.^  But  the 
questions,  whether  a  dam  was  a  nuisance,  and  whether 
three  weeks'  notice  to  remove  it,  before  suit,  was  sufficient, 
were  held  properly  submitted  to  the  jury.^  So  where  a 
policy  of  insurance  requires  that  notice  shall  be  given  to 
the  company  of  any  alterations  which  shall  tend  to  in- 
crease the  risk;  whether  particular  alterations,  of  which 
notice  has  not  been  given,  have  such  tendency.*  So,  where 
there  is  evidence  that  the  son  of  a  co-surety  gave  notice 
to  the  creditor  to  proceed  against  the  principal  debtor; 
whether  he  had  authority  to  give  such  notice.^(a) 

'  Pendleton  v.  Empire,  etc.,  19  *  Schenck  «.  Mercer,  &c.,  4  Zabr. 

K  Y.  (5  Smith)  13.  447. 

2  Slierer  v.  Easton  Bank,  33  s  Klin^ensmith ».  Klingensmith, 
Penn.  134  31  Peun.  460. 

3  Kemmerer    ■».     Edelman,     23 
Penn.  143. 

(a)  Constructive  notice — as  in  case  of  a  purchaser — is  a  legal  infer- 
ence from  established  facts;  and,  when  the  facts  are  not  controverted,  or 
the  alleged  defect  or  infirmity  appears  on  the  face  of  an  instrument,  and 
is  a  matter  of  ocular  inspection,  the  question  is  for  the  court.  Birdsall 
V.  Russell,  29  N.  Y.  (2  Tiffa.)  220.  There  is  no  error  in  leaving  to  the 
jury,  in  an  action  to  recover  the  value  of  goods  lost  by  theft,  while  in  the 
custody  of  a  railroad,  the  question,  whether,  under  the  circumstances,  it 
was  a  bailee  for  hire  or  performing  a  gratuitous  service,  it  appearing  that 
the  goods  had  reached  their  place  of  destination,  that  the  consignee  had 
been  notified,  but  that  he  had  failed  to  take  them  away  for  more  than 
two  days  after  their  arrival,  and  that  a  regulation  of  the  company,  pub- 
licly posted,  and  under  which  its  agents  acted,  directed  a  charge  to  be 
levied  for  storage  under  such  circumstances.     Nor  was  it  error  to  refuse 


340  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

§  107«.  Where  all  the  facts  upon  which  a  tenancy  is 
claimed  are  admitted  in  writing,  the  court  may  determine 
the  legal  relation  which  they  constitute.^ 

§  108.  Color  of  title  is  a  question  of  law,  but  the  good 
faith  of  the  party  claiming  under  it  is  a  question  of  fact.^(a) 
An  instruction  in  an  action  of  forcible  entry  and  detainer, 
having  relation  to  a  possession  under  color  of  title,  must 
define  what  is  color  of  title.^ 

§  108«.  An  instruction  on  the  question  of  legal  pos- 
session should  not  leave  it  to  the  jury  to  say  what  is  a 
legal  possession.*  But,  upon  the  question  whether  a  party 
was  in  possession,  it  is  the  province  of  the  jury  to  find, 
under  proper  instructions,  whether  possession  is  proved.^ 

§  109.  It  is  held  a  question  of  law,  what  constitutes 
adverse  possession,  and  what  evidence  is  necessary  to  sus- 
tain it.^  But,  in  an  action  of  trespass  quare  clausum,  where 
the  character  of  the  plaintiflfs  possession  and  the  right  of 
the  defendants  to  enter  were  assumed  by  the  judge  ad- 
versely to  the  defendants,  instead  of  being  left  to  the  jury ; 
a  verdict  for  the  plaintifi:'  was  set  aside.^(/>) 

1  noward  v.  Carpenter,  22  Md.  ^  Truesdale  v.  Ford,  37  111.  210. 
10.  ^  Cornelius  7;.  Gil)erson.  1  Dutch. 

2  Woodwardw.Blauchard,  16111.  1;  Bowie  v.  Biahe,  3  Duer,  35; 
424.  Paxson  v.   Bailey,    17   Geo.    GOO; 

3  Blanchard  v.  Pratt,  37  111.  243.     Lockhart  v.  Luker,  36  Miss.  68. 
*  Ibid.  '  Reid  v.  Kirk,  12  Rich.  54. 

to  instruct  the  jury,  that  such  notice  could  not  be  considered  as  a  con- 
tract for  storage,  until  it  should  appear  that  the  plaintiffs  knew  of  the 
notice  and  acquiesced  in  it.     Dimmick  v.  Milwaukee,  18  Wis.  471. 

(a)  It  is  held  in  a  late  case,  that  it  is  not  the  province  of  the  jury  to 
decide  what  is  color  of  title  made  in  good  faith.  Shacklcford  v.  Bailey, 
35  111.  387. 

(fc)  Whether  the  open  and  exclusive  possession  of  a  tenant,  continued 
for  thirty  years,  was  adverse,  is  a  question  for  the  jury.  Eaton  v.  Jacobs, 
52  Maine,  44;").  In  a  real  action  for  flats,  the  judge  instructed  the  jury, 
at  the  request  of  the  tenant,  that  it  might  be  shown,  by  occupation  and 


CH.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  341 

§  110.  "Where  a  sheriff  advertised  a  sale  of  "that  land' 
on  which  W.  T.  now  lives,"  and  there  was  evidence  to 
show  that  part  of  the  land  described  in  the  sheriff's  deed 
was  not  included  in  the  advertisement,  W.  T.  not  living 
on  it  at  the  time ;  held,  this  was  a  question  of  fact  for  the 
jury,  and  a  charge,  which  took  this  question  from  them 
by  directing  a  verdict,  was  erroneous.^ 

§  111.  Whether  a  marked  corner,  made  at  the  time  the 
deed  was  made,  but  not  called  for  by  name,  was  intended 
to  be  adopted  in  the  deed,  or  whether  it  was  intended  by 
the  bargainer  that  course  and  distance  should  prevail,  is 
a  question  of  fact,  in  the  ascertainment  of  boundaries, 
that  should  be  left  to  the  jury,  with  proper  instructions.2(a) 

§  112.  Upon  ejectment  to  try  the  title  to  unseated  land 
sold  for  taxes,  it  is  a  question  for  the  jury  what  land  was 
assessed  for  the  taxes;  and  the  land  which  was  intended 


»  Todd  V.  Pliilliower,  4  Zabr.  79G.         «  Safret  v.   Hartman,    5    Jones, 

185. 


conveyances,  that  the  proprietors  of  the  flats  had  agreed  that  the  dividing 
lines  between  their  estates  should  run  in  a  certain  direction ;  and  that 
upon  such  evidence  the  jury  might  presume  releases  and  conveyances 
between  the  proprietors,  establishing  such  line,  since  lost.  Held,  no 
ground  of  exception,  that  the  judge,  at  the  same  time,  called  the  jury's 
attention  to  the  peculiarity  of  the  law  in  relation  to  the  ownership  of 
flats,  by  which  there  can  be  no  disseizin  of  them  but  by  actual  occupa- 
tion, as  affording  a  ground  of  improbability  that  any  such  agreement, 
releases,  or  conveyances  have  been  made.  Curtis  v.  Francis,  9  Gush.  427. 
In  trespass  to  try  title  by  tenants  in  common  against  a  co-tenant,  the 
question  of  ouster  having  been  submitted,  upon  the  evidence,  to  the  jury, 
who  found  for  the  plaintiffs,  the  court  refused  to  set  aside  their  verdict. 
Myers  v.  McBride,  13  Rich.  178. 

(a)  A  new  trial  will  not  be  granted,  because  the  court  refused  to 
charge,  that  an  agreement  about  a  boundary  must  be  construed,  in  case 
of  doubt  as  to  its  terms,  or  any  ambiguity  arising  from  the  description, 
most  favorably  to  the  grantee;  when  the  record  does  not  show  that  the 
controversy  could  not  be  otherwise  determined.  Ball  v.  Bradley,  34 
Conn.  496. 


342  THE    LAW    OP   NEW    TRIALS.  [cil.  XL 

to  be  assessed  and  sold  passes  to  the  purchaser,  however 
it  may  be  designated.^ 

§  113.  The  location  and  survey  of  land,  where  there  is 
no  contlict  of  evidence,  are  questions  of  law.^  So  wdiere 
land  appears  by  the  pleadings  to  be  within  a  given  section, 
township,  and  range,  as  established  by  government  survey, 
its  locality  is  matter  of  public  record  addressed  to  the 
judicial  knowledge  of  the  court,  and  is  not  a  question  for 
the  jury.^ 

§  114.  l]ut  it  is  the  province  of  the  jury,  to  say  whether 
a  descriptive  warrant  has  been  located  on  the  land  it 
called  for  or  not.*  So,  in  an  action  of  ejectment,  an  assign- 
ment from  David  B.,  of  a  patent  for  donation  lands  drawn 
under  the  act  of  24th  March,  1785,  being  relied  on  as 
part  of  the  title,  it  appeared  by  the  general  draught  of  the 
district,  that  the  lot  in  question  was  drawn  by  David  B. 
The  patent  set  forth,  that,  in  consequence  of  the  services 
of  John  B.,  the  lot  is  granted  to  the  said  John,  to  hold 
to  the  said  David  B.  and  his  heirs  and  assigns.  Held,  it 
was  a  question  for  the  jury,  whether  the  lot  was  intended 
to  be  granted  to  David  B.*  So,  where  Congress  had  di- 
rected certain  lands  to  be  laid  out  in  a  certain  manner 
and  sold,  except  certain  lots  which  the  Secretary  of  the 
Treasury  might  reserve  for  the  support  of  schools ;  whether 
those  lots  were  so  reserved  is  a  question  for  the  jury.  There 
is  no  legal  presumption  that  he  made  the  selection.®(rt) 

'  Rnssel   v.   Werntz,    24    Ponn.  ''  Cassidy  v.  Conway,  25  Pcnn. 

337.  240. 

2  RamagcB.  Petcrmau,  2o  Ponu.  ^  Black  v.  Wurtz,  24  Pcnn.  125. 
349.  6  Dickins   v.  Maliaua,  21  How. 

3  Hypfnerc.  Walsh,  3  Iowa,  509.  U.  S.  270. 

(a)  It  is  a  question  of  fact,  whether  a  locator  on  public  lands  made 
the  first  location,  and  with  reasonable  diligence  followed  up  such  location 
with  the  necessary  improvements  or  with  preparations  for  such  improve- 
ments, so  as  to  entitle  him  to  the  land  against  a  person  subsc(|ueiit]y 
entering.     Staininger  v.  Andrews,  4  Nev.  59 ;  Sharon  v.  Davidson,  ib. 


CH.  XI.]         ERRONEOUS   RULINGS    OR   INSTRUCTIONS.  343 

§  115.  The  court  cannot  determine  what  are  the  limits 
or  whether  there  are  any  limits  of  a  place,  not  being  a 

416.  "Where  a  single  man,  with  two  adult  unmarried  sisters,  entered 
upon  an  abandoned  improvement,  cleared  and  lived  upon  it  for  many- 
years,  the  sisters  claiming  ownership  with  the  brother,  assisting  in  all  the 
labor  of  cultivation,  and  paying,  by  weaving  and  otherwise,  for  labor 
done  upon  the  farm  by  others ;  the  question,  whether  the  settlement  was 
that  of  all,  or  that  of  the  brother  only,  was  for  the  jury.  The  relation- 
ship was  not  such  as  to  raise  the  presumption  that  the  settlement  was 
that  of  the  brother  only  ;  and  refusal  of  the  instruction,  that  "  he  stood 
in  the  attitude  of  one  who  was  the  head  of  a  family,  and  that  the  pre- 
sumption was  one  of  law,"  was  not  error.  But  where  the  brother  had 
sold  the  land  to  one  under  whom  the  plaintiff  claimed,  the  facts  of  rela- 
tionship and  family  association  were  proper  for  submission  to  the  jury, 
with  proper  instructions,  for  them  to  infer  from  all  the  evidence  whether 
the  sisters  had  knowledge  of  the  sale.  Cambria  v.  Tomb,  48  Penu.  387. 
Whether  the  owner  of  a  homestead  has  abandoned  it  is  a  question  of 
fact.  Locke  v.  Rowell,  47  N.  H.  46.  Whether  a  sale  was  by  the  acre 
or  in  gross,  is,  in  general,  matter  of  judicial  construction  of  the  deed  or 
contract.  Weir  v.  McGee,  25  Tex.  20.  Whether  a  grant  from  the  State 
is  to  be  presumed,  is  a  question  for  the  jury.  Taylor  v.  Watkins,  26  Tex. 
688.  When  there  are  two  monuments  which  may  answer  the  call  in  a 
deed,  and  the  true  intendment  can  be  ascertained  by  applying  the  legal 
rules  of  construction  to  the  conveyance  itself,  the  question  is  one  of  law. 
Bonney  v.  Morrill,  52  Maine,  252,  What  the  boundaries  of  land  are,  is 
a  question  of  law  ;  tvhere  the  boundaries  are,  of  fact.  An  existing  line 
of  an  adjoining  tract  may  be  a  monument.  And  the  identity,  of  a  monu- 
ment found  upon  the  ground,  with  one  referred  to  in  the  deed,  is  always 
for  the  jury.  Where  the  eastern  boundary  of  the  land  conveyed  was  a 
line  "  as  surveyed  by  I.  J.  &  I.  B.,"  if  they  had  never  made  any  survey, 
there  was  a  latent  ambiguity.  If  a  dividing  line  had  been  made  by 
another  person,  whether  the  parties  referred  to  his  survey,  was  a  question 
for  the  jury.  Abbott  y.  Abbott,  51  Maine,  575.  It  is  a  question  of  fact 
for  the  jury,  whether,  in  any  case,  good  husbandry  requires  that  the  hay 
produced  on  a  farm  should  be  fed  out  on  it.  Wing  v.  Gray,  36  Yt.  261. 
Where  the  issue  before  the  jury  is,  whether  the  grantee  of  a  farm  has 
actual  possession  of  personal  property  which  is  on  it,  and  of  which  he 
has  a  bill  of  sale,  the  question  whether  he  is  in  actual  occupation  of  the 
farm  is  material,  and  should  be  left  to  the  jury.  Gaboon  v.  Marshall,  25 
Gal.  197.  In  an  action  of  ejectment,  it  is  for  the  jury,  under  proper  in- 
struction, to  determine,  from  the  number,  character,  and  time  of  entries 
by  the  owner,  for  the  purpose  of  cutting  timber,  whether  they  exhibit  a 
common  or  mixed  possession,  and  whether  the  possession  of  the  opposite 


344  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

public  corporation,  described  by  its  name  only.*  So,  where 
the  plaintiff's  were  to  run  for  the  defendant  his  staves  "at 
and  near  T."  at  a  specified  price ;  held,  whether  a  point  a 
mile  and  a  half  from  there  was  "  near  T.,"  within  the 
meaning  of  the  contract,  was  a  question  of  fact  for  the 
jury.-  So  whether  a  lot  is  an  "  out  lot,"  under  the  act  of 
June  .13,  1812,  relating  to  out  lots,  &c.,  belonging  to 
certain  towns  in  Missouri,  and  has  been  inhabited  as  such 
within  the  meaning  of  that  act.^ 

§  116.  Delivery  is  in  general  a  question  for  the  jury. 
Thus  the  delivery  of  a  contract.^  Or  of  goods  (under  the 
direction  of  the  judge),^  Or  delivery  under  an  assign- 
ment.^ So  cither  in  a  sale  or  exchange  of  personal  pro- 
perty.^ Or  whether  there  was  such  a  change  of  possession 
as  the  nature  of  the  property  requires  for  delivery.^  So 
whether  there  has  been  a  fraudulent  retention  of  posses- 
sion by  the  vendor  of  personal  property.^ 

§  117.  The  sufficiency  of  provocation  to  excuse  or  ex- 
tenuate murder  is  a  question  of  law."^ 

§  118.  The  question,  how  much  less  weight  a  threat 
made  by  an  excited  man  is  entitled  to  than  one  made  by 
a  cool  man,  is  for  the  jury.'*  Or  whether  a  person  was 
drunk}'^     So  the  point  of  identity }\a) 

»  Blanding  v.  Sargent,  33  N.  II.  ^  Howe  v.  Keeler.  27  Conn.  538. 

239.  '°  State  v.  Jones,  30  Mis.  58. 

2  Sliaw  ».  Davi-s,  7  Mich.  318.  "  McPlierson  v.  The    State,    22 

3  Savii^nac  «.  Garrison,  18  How.  Geo.  478. 

U.  S.  136.  '^  Ciuumings  v.  Henry,  10   Ind. 

<  .Taquith  v.  Hudson.  5  Mieh.  123.  109. 

5  lIonghtalinirD.  Ball,  19  .Mis.  84.  '»  Freeman   v.   Loftis,    6    .Tones, 

5  Ilall'y.  Wheeler.  13  Ind.  371.  524;  Hines   v.  The   Slate.  26  Geo. 

'  Khea  v.  Riner,  21  111.  r)26.  614;  Mortons.  Waring,  18  B.  Mon. 

8  Chase  v.  Ralston,  30  Penn.  539.  72. 

party,  claiming  by  marked  lines,  was  or  was  not  exclusive  ;  or  whether 
they  were  casual  and  accidental,  and  not  done  in  prosecution  of  his  rights 
as  owner.     O'llara  v.  Richardson,  46  Penn.  385. 

(a)  Upon  a  trial  of  H.,  for  perjury,  in  swearing  falsely  that  she  had 
never  been  married  to  P.,  a  record  of  a  marriage  was  put  in  evidence. 


CH-.  XI.]         ERRONEOUS   RULINGS    OR   INSTRUCTIONS.  345 

§  119.  Intention  is  a  question  for  the  jury.  As  whether 
a  warranty  is  intended  by  the  language  used  between  the 
parties.!  So  what  were  the  intentions  of  a  donor  by  pa- 
rol gift,  whether  to  make  a  conditional  or  an  absolute 
gift,  is  a  question  of  fact  for  the  jury,  and  not  of  law  for 
the  court.^  So,  where  the  question  was,  whether  a  certain 
assignment  was  abandoned,  it  was  held  to  depend  on 
intention,  and  the  jury  must  decide  what  that  intention 
wa8.2(a) 

'  Lammet).  Gregg,  1  Met.  (Ky.)  *  Halbert  v.  Halbert,  21  Mis.  277. 
444.  3  Wilsou  V.  Pearson,  20  111.  81. 

Held,  it  was  error  to  charge,  that,  unless  there  was  some  extraneous  evi- 
dence to  raise  a  doubt  of  the  identity  of  the  parties,  the  presumption 
■was  that  they  were  the  same.  The  question  of  identity  was  for  the  jury. 
Hendricks  v.  State,  26  Ind.  493.  Where  a  book  designated  as  the  "bound 
book,"  and  alleged  to  be  a  record  of  the  county  commissioners  of  the 
assessment  of  taxes  on  unseated  lands  for  a  certain  year,  was  found  in  an 
office  occupied  by  the  commissioners  and  treasurer,  and  required  extrinsic 
evidence  to  identify  it;  held,  a  question  for  the  jury  whether  it  belonged 
to  the  commissioners.  McReynolds  v.  Longenberger,  57  Penn.  13. 
Whether  certain  bills  rendered  were  for  the  same  wood  upon  which  the 
defendant  had  drawn  an  order  in  favor  of  the  plaintiff,  was  held  to  be  a 
question  which  might  properly  be  left  to  the  jury.  Piper  v.  White,  56 
Penn.  90.  A  reference,  in  a  contract,  to  a  paper  of  the  same  name  or 
general  description  as  one  produced  in  evidence,  does  not  authorize  the 
judge  in  his  instructions  to  assume  that  the  paper  produced  and  that  re- 
ferred to  are  identical ;  the  question  of  identity  is  for  the  jury.  AVitherell 
V.  Maine,  49  Maine,  200.  The  question,  whether  a  grantor  is  the  same 
person  as  the  grantee  of  a  former  deed,  is  for  the  jury,  and  not  one  of 
law,  or  a  preliminary  one  of  fact,  to  be  passed  on  by  the  court  before  the 
admission  of  the  deed  in  evidence.     Carleton  v.  Townsend,  28  Cal.  219. 

(a)  The  question  concerning  the  intention  with  which  a  party  executed 
a  note,  whether  to  bind  himself,  or  as  trustee  for  another,  is  a  question  of 
law,  in  view  of  the  language  of  the  note,  the  circumstances  under  which 
it  was  executed,  and  the  situation  of  the  parties.  Lewis  v.  Harris,  4 
Met.  (Ky.)  353.  When  a  person's  intention  is  to  be  judged  of  by  his 
writing,  it  is  a  question  for  the  court ;  but  when  it  is  to  be  judged  of  by 
extrinsic  facts,  or  when  the  writing  forms  part  of  a  transaction,  the  rest 
consisting  of  words  or  acts,  or  when  it  is  but  a  circumstance  tending  to 
establish  some  other  fact,  it  is  a  question  for  the  jury.  Winter  v.  Norton, 
1  Oreg.  42. 


346  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

§  120.  In  an  action  to  recover  for  a  horse,  the  plaintiiF 
claimed,  tliat  he  died  of  sudden  fright,  caused  by  the  fire 
and  exi>losion  of  a  cracker  fired  ort  by  the  defendant,  and 
the  defendant,  that  it  was  from  over-driving  in  warm 
weatlier,  and  there  was  evidence  upon  both  sides.  Ilehl, 
it  was  the  province  of  the  jury  to  decide  this  issue,  and 
the  court  would  not  interfere  with  a  verdict  for  the 
plaintiftV 

§  121.  Partnership  is  a  question  of  law,  dependent  on 
the  facts.^(a) 

•  Conklin  v.  Thompson,  29  Barb.  *  Robinson  v.  Green,  5  Ilarring. 
218.  115. 

(a)  The  question,  whether  money  was  borrowed  by  one  partner  on  his 
own  credit  and  for  his  private  use,  or  on  the  credit  and  for  the  use  of  the 
firm,  is  for  the  jury.  "Webster  v.  Stearns,  44  N.  H.  498.  In  an  action 
against  a  firm,  the  defendants  read  the  deposition  of  a  clerk,  who  was 
alleged  by  the  plaintiff's  to  be  a  secret  partner.  Held,  there  was  no  error 
in  leaving  to  the  jury  to  find  whether  the  clerk  was  a  partner,  they  being 
instructed  to  disregard  his  testimony  if  they  so  found.  Hunter  v.  Hub- 
bard, 26  Tex.  537.  Where  the  members  of  a  firm  agreed  that  one  should 
take  the  assets  and  pay  the  debts,  and  the  issue  is  whether  he  is  bound 
to  pay  the  others  the  indebtedness  of  the  firm  to  them ;  the  question, 
■whether  any  agreement  to  that  effect  was  made,  should  be  submitted  to 
the  jury.    Carl  v.  Knott,  16  Iowa,  379. 

Whether  there  is  sufficient  proof  of  agency  to  warrant  the  admission 
of  the  acts  and  declarations  of  the  agent  in  evidence,  is  a  preliminary 
question  for  the  court.  Cliquot's,  3  Wall.  114.  Where  a  charterer  of  a 
vessel  requests  a  salt  merchant,  who  is  also  an  agent  of  his,  to  load  it 
with  salt,  which  is  done,  the  agent  taking  the  mate's  receipts  in  his  own 
name;  it  is  a  question  for  the  jury,  whether  the  agent,  by  delivery  of  the 
salt  on  board,  parted  with  the  possession,  and  vested  the  property  in  the 
charterer,  the  question  depending  upon  the  intention  of  the  agent.  Falk 
V.  Fletcher,  18  C.  B.  (N.  S.)  403.  Judgment  for  the  plaintiffs  was  re- 
versed, where  the  agency  of  the  defendant  was  a  material  fact,  and  the 
charge  was  such,  as  to  lead  the  jury  to  conclude  that  the  question  of 
agency  was  not  for  them.  Hart  v.  Girard,  .56  Penn.  St.  23.  Where,  in 
replevin  for  lumber  sold  by  an  agent,  the  nature  and  extent  of  the  agency 
are  contested,  a  letter  from  the  principal  to  the  agent,  bearing  upon  the 


CH.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  347 

§  122.  As  may  be  gathered  from  some  of  the  illustra- 
tions  already  adduced,  mixed  questions  of  law  and  fact 


scope  of  his  authority,  is  admissible,  but  its  effect  is  a  question  of  fact 
for  the  jury.     Slonecker  v.  Garrett,  48  Penn.  415. 

In  an  action  by  a  town  against  recruiting  agents  to  recover  back  money 
paid  them,  it  being  a  material  question  whether  the  defendants  had  au- 
thority to  engage  men  to  enter  the  military  service  and  be  credited  on 
the  quota  of  the  town ;  held,  the  question  should  have  been  submitted  to 
the  jury.  Hart  v.  Girard,  56  Penn.  St.  23.  So  where  a  person  enlisted 
as  a  nine  months'  volunteer,  and  on  the  same  day  was  mustered  into  ser- 
vice as  assistant  surgeon  of  a  three  years'  regiment,  it  is  a  question  for 
the  jury  whether,  under  all  the  evidence,  he  ever  so  engaged  to  serve  for 
nine  months,  as  to  entitle  the  town  from  which  he  came  to  claim  him  as 
one  of  its  quota.  Stone  v.  Danbury,  46  N.  H.  139.  A  corporation  en- 
gaged in  the  transportation  of  freight  undertook  to  unload  coal  from  a 
vessel  upon  its  cars,  and  hired  A.  to  superintend  the  unloading  and  load- 
ing, who  employed  B.,  who  was  injured  by  a  car  being  backed  down  upon 
him  by  the  servants  of  the  corporation.  Held,  an  instruction  to  the  jury, 
in  an  action  by  B.  against  the  corporation,  that,  if  A.  had  the  full  con- 
trol of  employing  or  discharging  B.,  B.  was  not  a  servant  of  the  corpo- 
ration, and  it  was  a  question  of  fact  for  the  jury  whether  B.  was  or  was 
not  a  servant  of  the  corporation,  was  correct.  Burke  v.  Norwich,  34 
Conn.  474. 

The  question  whether  there  has  been  a  sale  is  for  the  jury.  McClung 
V.  Kelley,  21  Iowa,  508.  So,  in  an  action  for  non-delivery  of  goods  under 
a  cash  trade,  the  question  of  readiness  and  ability  to  pay.  Cumraings  v. 
Tilton,  44  111.  172.  Where  one  bid  off  a  parcel  of  wheat  at  auction,  and 
another  gave  his  note  for  it,  in  compliance  with  his  terms  at  the  time;  it 
was  properly  left  to  the  jury  to  determine,  whether  the  latter  intended 
to  become  the  purchaser,  or  a  surety  for  the  bidder.  Thompson  v.  An- 
drews, 8  Jones,  L.  453.  In  an  action  to  recover  back  money  paid  for  a 
table,  there  was  evidence  that  the  plaintiffs  made  a  contract  in  writing  with 
the  defendant,  that  he  should  manufacture  the  table,  to  be  delivered  on 
a  wharf,  ready  for  shipment.  Afterwards  they  notified  him  that,  having 
a  vessel  ready  to  sail,  they  would  receive  the  table.  He  offered  testi- 
mony, that  he  notified  them  that  it  was  finished  and  ready  for  shipment, 
and  afterwards  proposed  to  dispose  of  it  otherwise,  to  which  they  objected, 
claiming  it  for  shipment.  A  bill  for  the  table  was  presented  and  paid  by 
them,  and  they  were  informed  that  the  table  was  ready,  and  replied  that 
they  would  give  notice  when  they  had  a  vessel  ready,  to  which  no  objec- 


348  ,        THE   LAW    OF   NEW    TRIALS.  [CIl.  XI. 

necessarily  go  to  the  jury,  under  the  instructions  of  the 
court.  If  these  be  deemed  by  the  party  insufficient,  he 
sliould  move  at  the  time  for  specific  instructions,  in  order 
to  Lay  the  foundation  for  exception.^  The  charge  should 
be  confined  to  the  case  made  out  in  proof;  but,  when  there 
is  testimony  tending  to  raise  a  question,  it  is  not  for  the 
court  to  pass  on  its  sufliciency,  but  to  leave  it  to  the  jury, 
merely  declaring  its  eflect  in  law.' 

§  123.  It  is  ground  of  new  trial,  that  the  judge  fails  to 
instruct  the  jury  as  to  the  legal  meaning  of  a  technical 
term.  As  where,  in  an  action  for  use  and  occupation,  the 
jury  were  instructed  that  the  plaintiff  need  not  show 
actual,  but  only  constructive,  occupation.  The  judge  should 
have  explained  the  meaning  of  the  term  constructive.^ 

§  124.  "What  constitutes  a  common  carrier  is  a  question 
of  law;  whether  a  person  comes  under  the  definition  is 
one  of  fact."  So  the  meaning  of  the  phrase  in  a  building 
contract,  "when  the  walls  shall  be  completed,"  is  a  ques- 
tion of  law  for  the  court,  and  whether  the  necessary  acts 
were  done  is  a  question  for  the  jury.' 

§  125.  It  is  a  question  of  law  for  the  court,  whether 
certain  articles  for  which  an  infant  is  sued  are  within  the 
class  of  necessaries.  While  it  is  for  the  jury  to  determine 
whether  the  articles  were  under  the  circumstances  neces- 
sary/or  him.^ 

I  Kent  V.  Tyson,  30  X.  IT.  121.   .  «  -Worcester,  &c.  v.  ILarding,   11 

«  Goodall  V.  Thurmau,  1  Head,  Cash.  28"). 

209.  •*  Swift  V.  Bonnott,  10  Cnsh.  436  ; 

3  Towne  t).  D'TIeinrich,  13  Com.  Merriam   v.   Cuuningham,    11    ib. 

B.  (4  J.  Scott)  8'.)1.  40. 

«  Pennewill  n.  CuUen,  5  Harring. 
238. 


tion  was  made  by  him,  and  while  thus  in  his  custody  it  was  burnt.  Held, 
the  question  whether  the  property  had  passed  to  thcni  should  have  been 
left  to  the  jury.     Weld  v.  Came,  98  Mass.  152. 


CH.  XI.]        ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  349 

§  126.  Among  the  most  frequent  questions,  involving 
to  some  extent  both  law  and  fact,  are  those  of /mM<i.(rt) 
The  prevailing  rule  is,  that  fraud  is  always  a  question  for 
the  jury.  Thus  a  new  trial  was  granted,  where  the  jury 
were  instructed,  that  a  deed  executed  by  parent  to  child, 
in  consideration  of  natural  love  and  affection,  was  to  be 
deemed  in  law  fraudulent  and  void  against  a  creditor. 
The  court  say:  "There  is  no  such  thing  as  fraud  in  law, 
as  distinguished  from  fraud  in  fact."^ 

§  127.  The  issue  being  on  a  party's  fraud,  the  court 
should  instruct  the  jury  as  to  what  constitutes  legal 
fraud.2  But  where  the  evidence  is  conflicting,  it  is  error 
to  instruct  the  jury,  that  if  they  believe  the  evidence  they 
must  find  for  the  plaintiff.^  Thus  the  question  of  fraud- 
ulent intent  in  the  execution  of  a  voluntary  deed  is  for 
the  jury;  and  the  court  has  no  right  to  assume  that  such 
intent  is  proved,  even  if  there  is  a  strong  tendency  of  the 
evidence  in  that  direction.* 

§  127a.  In  a  case  where  the  court  would  have  been 
authorized  to  instruct  the  jury,  that  a  deed  for  a  valuable 

I  Per  Sutherland,  J.,  Jackson  v.  »  Flack  v.  Neill,  23  Tex.  253. 

Timmerman,  7  Wend.  43G  ;  Man-  '  Williams  v.  Hartshorn,  30  Ala. 

ning  V.  Dove,  10  Rich.  395  ;  Fow-  211. 

ler  V.  Swift,  3  Ind.  1S8  ;  Williams  *  Gardner  v.  Boothe,  31  Ala.  186. 
V.  Bentley,  29  Peun.  272. 


(a)  See  Gage  v.  Parker,  25  Barb.  141;  Erwin  v.  Voorhies,  26  ib.  127; 
Chenery  v.  Palmer,  6  Cal.  119;  Upson  v.  Raiford,  29  Ala.  188 ;  Howe  v. 
Keeler,  27  Conn.  .538.  Upon  the  point  whether  continued  possession  of 
the  vendor  is  frmidulent  in  laiv  or  only  evidence  of  fraud,  see  Bissell 
V.  Hopkins,  3  Cow.  166 ;  Sturtevant  v.  Ballard,  9  John.  338 ;  Barrow  v. 
Paxton,  5  John.  261 ;  Hall  v.  Tuttle,  8  Wend.  375 ;  Collins  v.  Brush,  9 
Wend.  198.  Mr.  Graham  speaks  of  the  "  very  elaborate  and  perspicuous 
decision  of  the  court  in  Seward  v.  Jackson,  8  Cow.  406."  1  Graham,  289 
(abolishing  the  distinction  between  fraud  in  fact  and  fraud  in  law,  and 
requiring  the  question  in  all  cases  to  be  left  to  the  jury.  Ace.  Jackson 
V.  Peck,  4  Wend.  300). 


350  THE   LAW    OF   NEW    TRIALS.  [CII.  XI. 

consideration,  made  subsequent  to  a  prior  voluntary  con- 
veyance of  which  the  grantee  had  notice,  was  void,  if  such 
an  instruction  had  been  asked  for;  a  proviso,  added  to  a 
prayer,  submitting  a  question  of  fraud  under  the  contract 
to  the  jury,  that,  if  they  also  find  the  consideration  inade- 
quate, then  the  deed  is  void,  though  unnecessary,  will  not 
vitiate  the  prayer.^ 

§  1276.  AVhere  the  jury  are  instructed,  that  certain  cir- 
cumstances would  justify  the  conclusion,  that  a  convey- 
ance was  fraudulent  in  fact,  in  a  case  where  there  is  no 
presumption  of  law  to  guide  them ;  this  is  a  summing  up 
of  the  evidence,  not  an  instruction  on  a  question  of  law.^ 


§  128.  A  general  charge,  that  "fraud  is  not  to  be  pre- 
sumed, but  must  be  proved  by  the  party  alleging  it,"  is 
insufficient,  and  calculated  to  mislead,  where  there  are 
facts  and  circumstances  tending  to  prove  fraud.^ 

§  129.  The  question  whether  a  person,  buying  goods 
when  insolvent,  purchased  with  an  honest  intention  of 
paying  for  them  and  continuing  his  business,  is  to  be  de- 
cided by  the  jury  from  all  the  circumstances  in  the  case.* 
Or  whether,  on  facts  in  evidence,  there  has  been  fraud  in 
an  assignment  of  goods.^  Or  wdiether  a  representation  as 
to  credit,  though  not  very  strong,  was  false  and  fraudu- 
lent, the  maker  being  proved  to  have  known  of  large  in- 
debtedness of  which  he  made  no  mention.^  Or  whether 
a  conveyance  is  fraudulent  or  not.^  Or,  if  there  is  any 
evidence  tending  to  show  it,  whether  a  deed  was  a  volun- 
tary one,  and  intended  to  hinder,  delay,  and  defraud  cre- 
ditors.^    So,  iu  an  action  for  failing  to  convey  real  estate, 

'  Baltimore  v.  Williams,  6  'Md.  ^  Church  v.  D'rmnmond,  7  Ind. 

23.-).  17. 

2  McDermott  v.  Barnum,  19  Mis.  «  Zaliriskic  v.  Smith,  H  Kern.  322. 
204.  ■'  Holniiin  v.  IMnrtiii.  12  Ind.  5.^3. 

3  Causey  v.  "VVilcy,  27  Geo.  444.  »  Graham  «.  iSniith,  23  Teuu.  323. 
*  Buckley  v.  Arte      r,  21  Barb. 

585. 


CH.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  851 

the  question,  whether  the  vendor  acted  bondjide,  or  wil- 
fully neglected  or  refused.^  So  the  jury,  not  the  court, 
must  decide  on  the  fulness  of  a  dehtor's  schedule.^  So  in 
equity,  the  question,  whether  the  consideration  of  a  con- 
tract is  so  grossly  inadequate,  that  a  decree  of  specific 
performance  should  he  refused,  is  properly  and  peculiarly 
a  question  for  a  special  jury.^  So  where  a  defendant  had 
represented  the  water-wheel  and  shaft  of  a  mill,  sold  by 
him,  to  be  sound  and  new;  it  was  held  error  to  instruct 
the  jury,  that,  if  they  had  been  put  in  less  than  two  years 
they  were  new,  and  the  representation  was  correct,  and 
subsequent  rotting  would  not  render  the  defendant  liable ; 
since  it  was  for  the  jury  to  judge  both  of  their  soundness 
and  newness.*  So  in  an  exchange  of  horses,  whether  the 
contract  was  in  all  respects  carried  out  as  to  the  condition 
of  the  animals,  is  a  question  for  the  jury,  and  their  ver- 
dict will  not  be  disturbed,  unless  under  unusual  circum- 
stances.^ So  whether  a  misrepresentation  by  an  assured 
be  material  to  the  risk  or  not,  is  a  question  for  the  jury.* 
So  in  an  action  for  fraud  in  the  performance  of  a  contract 
for  manufacturing  shingles,  a  trunk  of  so-called  shingles 
was  brought  into  court,  and  upon  inspection  the  judge 
charged  that  they  were  not  shingles.  Held,  a  new  trial 
should  be  granted.^ 

§  130.  Fraud,  however,  may  sometimes  be  a  question 
of  law.  As,  under  some  circumstances,  in  case  of  an 
alleo;ed  fraudulent  deed.^  So  when  the  facts  on  wdiich 
the  fraud  depends  are  well  pleaded  and  admitted  by  de- 
murrer.^    Though  an  instruction,  relating  to  a  question 


1  Sweem  v.  Steele,  5  Clarke,  3.i2.        ^  Boardraan  v.  Insurance  Co.,  20 
See  Powell  v.  Davis,  19  Tex.  380.  N.  H.  5ol. 

2  Minis  V.  Lockett,  20  Geo.  474.  '  Morton  v.  Fairbanks,  11  Pick. 

3  Willcoxon  V.  Eason,  19  Geo.  368. 

565.  ^  Addington    v.    Elhoriilge,     12 

4  Reynolds  v.  Cox,  11  Ind.  262.  Gratt.  436. 

5  Rhta  V.  Riner,  21  III.  526.  «  Garrisli  v.  Mace,  9  Gray,  236. 


352  THE   LAAV    OF   NEW    TRIALS.  [ciI.  XT. 

of  fraudulent  intent,  must  be  based  upon  all  tlie  facts  which 
may  be  assumed  to  be  proved.'(a) 

'  Ewing  V.  Gray,  12  Iiul.  G4. 

(a)  In  New  York,  where  the  validity  of  a  sale  or  assignment  of  goods 
dopoiids  upon  whether  it  was  made  with  intent  to  hinder,  delay,  or  de- 
fraud creditors,  the  judge  is  bound  to  submit  the  case  to  the  jury.  (2  R. 
S.  137,  §  4.)  Peck  v.  Grouse,  46  Barb.  151.  Where  an  issue  is  the 
fraudulent  intent  of  a  sale,  the  intent  is  a  question  for  the  jury.  Miller 
V.  Stewart,  24  Cal.  502.  So,  whether  the  presumption  of  law,  that  a  sale 
of  property,  the  consideration  of  which  was  paid  by  A.,  is  fraudulent  as 
against  his  creditors,  has  been  rebutted  by  the  evidence.  Foster  v. 
Berkey,  8  Minn.  351.  Where  a  party,  in  consequence  of  false  and  fraud- 
ulent representations,  the  false  and  fraudulent  representations  being  that 
a  corporation  "  was  all  right,  and  would  immediately  prosecute  the  deve- 
lopment of  its  property,"  bought  certain  pretended  shares  in  the  corpora- 
tion, which  was  fraudulently  organized ;  held,  it  was  properly  left  to  the 
jury  to  interpret  these  statements  under  the  evidence.  Bradley  v.  Poole, 
98  Mass.  169.  If  fraudulent  intent  is  only  to  be  deduced  from  facts  and 
circumstances,  which  the  law  considers  as  mere  badges  of  fraud,  and  not 
fraud  per  se;  these  should  be  submitted  to  the  jury.  Thus,  in  an  action 
against  a  sheriff  for  illegally  levying  on  goods  claimed  by  a  deed  of  assign- 
ment, alleged  by  the  answer  to  be  fraudulent  and  void.  Van  Hook  v. 
Walton,  28  Tex.  59.  Whether  a  mortgage  was  made  in  good  faith  to 
cover  future  advances,  or  is  a  pretended  security,  is  a  question  for  the 
jury.  Tully  v.  Ilarloe,  35  Cal.  302.  So  whether  a  mortgage  is  given 
with  a  fradulent  intent,  under  the  (Ind.)  statute,  ?  21,  1  G.  &  H.  353. 
Maple  V.  Burnside,  22  Ind.  139.  Where  one  laid  out  a  plan  of  lots  and 
sold  them  at  auction,  and  a  lithographed  map  was  exhibited  to  the  bid- 
ders, upon  which  the  lots  and  streets  were  delineated,  but  the  streets 
were  not  thus  laid  out ;  held,  the  question,  whether  there  was  a  misrepre- 
sentation of  the  existence  of  the  streets,  and  their  materiality  to  the 
purchaser  such  as  would  justify  a  detention  of  any  part  of  the  purchase- 
money,  should  have  been  submitted  to  the  jury.  McCall  v.  Davis,  56 
Penn.  431.  In  an  action  for  fraudulently  obtaining  a  farm  from  the 
plaintiff  in  exchange  for  worthless  railroad  stock ;  assuming  that  the 
pleadings  were  sufficient,  or  that  they  should  have  been  amended,  held, 
the  court  erred  in  granting  a  nonsuit,  and  in  refusing  to  submit  to  the 
jury  the  question  of  fraudulent  representations,  as  to  the  soundness  and 
solvency  of  the  company.  So,  although  the  plaintiff  was  somewhat  ac- 
quainted with  the  affairs  of  the  company,  it  was  a  question  for  the  jury, 
whether  in  taking  the  stock  he  was  governed  in  whole  or  in  part  by  his 


CH.  XI.]        ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  353 

§  131.  Malice  is  in  general  a  question  of  fact  for  the 
jury.  Thus,  in  an  action  for  the  service  of  a  process  upon 
the  plaintiff,  the  instruction  was,  that  "the  manner  in 


own  knowledge,  or  by  the  representations  of  the  defendant,  who  was 
fiscal  agent  of  the  company,  and  in  a  position  to  know  its  character  and 
financial  condition.     Also,  whether  the  representations  made  by  the  de- 
fendant some  time  prior  to  the  making  of  the  agreement,  the  principal 
one,  on  the  same  day,  were  designed  to  influence,  and  did  influence,  the 
plaintifi",  and  whether  they  were  made  in  reference  to  the  contract.   Yates 
V.  Alden,  41  Barb.  172.     A  charge,  that  there  is  a  presumption  of  fraud 
when  the  vendor  remains  in  possession  after  the  sale,  is  not  a  violation 
of  a  statute  which  provides  that  the  judge  shall  not  charge  on  the  weight 
of  evidence  or  testimony,  the  presumption  in  this  case  being  a  legal  infe- 
rence.   Gibson  v.  Hill,  21  Tex.  225.     Where  at  a  judicial  sale  of  personal 
property  the  only  bid  ofiiered  was  by  the  auctioneer,  who  sold  by  direc- 
tion and  in  presence  of  the  officer,  and  the  property  was  struck  down  at 
much  below  its  value,  in  consequence,  as  alleged,  of  the  purchaser's  false 
representations,  which  deterred  others  from  bidding ;  the  question  of  fraud- 
ulent intent  was  for  the  jury.    Brotherline  v.  Swires,  48  Penn.  68.     In 
trover  to  recover  property  from  one  who  purchased  it  of  A.,  the  plaintiff 
standing  by  and  making  statements  in  regard  to  it ;  held,  whether  the 
purchaser  was  induced  to  buy  by  the  declarations  or  acts  of  the  plaintiff, 
the  true  owner,  was  a  question  for  the  jury.    Mason  v.  "Williams,  8  Jones, 
L.  478.     Where  the  defence  to  an  action  on  an  insurance  policy  is,  that 
the  insured  represented  that  the  value  was  much  more  than  it  was ;  wheth- 
er there  was  any  such  misrepresentation,  and,  if  so,  whether  it  was 
material  to  the  contract,  is  a  question  for  the  jury.     Keeler  v.  Niagara, 
16  Wis.  .523.     So  whether  the  recording  of  a  deed  by  the  vendee  is  evi- 
dence of  fraud.     Fairly  v.  Fairly,  38  Miss.  280.     Fraud,  and  fraudulent 
intent,  are  always  questions  for  the  jury ;  and,  although  there  are  cases 
where  it  is  said  the  law  presumes  fraud  from  certain  acts,  yet  that  pre- 
sumption is  only  the  conclusion  of  the  law  upon  the  facts  as  they  are 
proved.     Wakeman  v.  Dalley,  44  Barb.  498.     The  "  possession  or  appa- 
rent possession"  of  a  vendor  or  mortgagor,  under  the  bills  of  sale  act  (17 
&  18  Vict.  c.  26),  is,  in  general,  a  question  of  fact.     Gough  v.  Everard, 
2  Hurl.  &  Colt.  1.     Where  parties  to  a  contract  of  sale  have  appointed 
an  arbiter  to  measure  the  merchandise  agreed  to  be  sold,  and  have  con- 
tracted that  payment  shall  be  made  according  to  such  measurement,  they 
are  bound  by  it.     In  the  absence  of  fraud,  every  presumption  is  in  favor 
of  its  accuracy;  and  it  is  error  to  submit  to  the  jury  the  question  of  mis- 
take or  fraud,  without  evidence  from  which  it  could  fairly  be  inferred. 
Herdic  v.  Bilger,  47  Penn.  60. 

23 


354  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

which  the  warrant  was  executed,  and  the  property  used, 
is  evidence  to  show  malice,  and  may  be  taken  into  con- 
Bideration  in  enliancing  damages."  Held,  ground  of  new 
trial,  because  it  assumes  the  facts,  and  treats  the  question 
of  malice  as  a  question  of  law.^  So  whether  a  tree  in  a 
highway,  cut  down  by  the  overseer,  obstructed  the  road, 
or  whether  it  was  cut  down  wantonly  or  maliciously,  are 
questions  for  the  jury.^  So  the  question  of  malice,  in  the 
trial  of  an  indictment  against  a  magistrate  for  official 
misdemeanor,  ^(a) 

§  132.  Whether  a  publication,  charged  as  libellous,  was 
uttered  of  and  concerning  the  plaintiff,  is  a  question  for 
the  jury.^  But,  in  an  action  of  slander,  it  is  the  province 
of  the  court  and  not  the  jury  to  determine  what  expres- 
sions were  slanderous,  and  it  is  error  to  charge  "that,  if 
the  i)laintiff  hud  proved  the  speaking  of  any  of  the  slan- 
derous words  charged  in  the  petition,  they  should  find  for 
him."^ 

§  133.  "  The  question  of  ])rohahle  cause,  in  an  action  for 
malicious  prosecution,  more  especially  where  the  testi- 
mony is  conflicting,  is  a  mixed  question  of  law  and  fact. 
"Where  the  facts  are  uncontested,  it  is  the  duty  of  the 
judge  to  apply  the  law  and  determine  the  issue.  If  there 
are  contested  facts,  he  should  charge  the  jury  hypotheti- 
cally,  upon  the  state  of  facts  claimed  by  each  party."^ 
More  especially  if  counsel  demand  specific  instructions  on 

1  Sherman  v.  Duth,  Ifi  111.  283.  s  Estham  «.  Curd,   15  B.  Mon. 

Ace.  KofTcrs  V.  West,  9  Ind.  400.  103. 

8  Winter   v.   Peterson,    4   Zabr.  *•  1    Ililliard  on   Torts,   3d   ed., 

524.  chap.  ir>,  ^5  23.     (See  ib.  and  scqu. 

s  State  V.  Allen,  22  Mia.  318.  lor  the  somewhat  nice  distinctions 

*  Green  v.  Tell'air,  20  Barb.  11.  upon  this  subject.) 

(a)  In  an  action  for  maliciously  ejecting  the  plaintiff  from  a  car,  where 
the  evidence  is  conflicting,  the  question,  whether  the  plaintiff  was  on  the 
car  as  a  passenger,  and  was  pushed  off,  or  was  there  without  right,  and 
dropped  off,  is  for  the  jury.     Meyer  v.  Second  Av.  Co.,  8  Bosw.  305. 


en.  XI.]         ERRONEOUS   RULINGS    OR   INSTRUCTIONS.  355 

the  faets.^  So  where  a  plea  alleges  reasonable  and  proba- 
ble cause,  the  court  is  bound  to  instruct  the  jury  what 
allegations  are  sufficient ;  and  if  the  sufficient  allegations 
are  proved,  but  others  are  not,  the  case  should  be  sub- 
mitted upon  the  former.^  Whether  the  circumstances 
alleged  to  show  the  cause  probable  are  true,  is  a  question 
for  the  jury ;  but  whether,  supposing  them  to  be  true,  they 
amount  to  probable  cause,  is  a  question  of  law.^  Malice 
is  a  question  for  the  jury;  probable  cause,  upon  facts  estab- 
lished, a  question  of  law.  The  judge  may  either  order  a 
nonsuit,  or  direct  a  verdict  for  the  defendant,  if,  in  his 
opinion,  the  facts  admitted  or  clearly  established  are  not 
sufficient  to  prove  a  want  of  probable  cause,  notwithstand- 
ino-  evidence  in  defence  has  been  introduced.^ 

§  134.  A  new  trial  will  not  be  granted  for  leaving  to 
the  j  ury  a  question  of  negligence.^  And  it  is  error  for  the 
court  to  say  what  particular  act  is  negligence.^  So,  in  an 
action  on  the  case  for  negligence,  the  peculiar  circum- 
stances of  the  case  cannot  be  ascertained  by  the  court, 
but  must  be  referred  to  the  jury.^  Thus  the  reasonable 
diligence  of  an  agent  is  a  question  for  the  jury.^  So 
whether  a  town  has  used  ordinary  care  in  the  construction 
of  its  roads,  and  whether  they  are  reasonably  safe.^  So  a 
gate,  constructed  by  a  railroad  company  at  a  crossing, 
having  got  out  of  repair,  the  adjoining  proprietor,  with, 
out  giving  notice  to  the  company,  took  measures  to  secure 
it,  which  proved  ineiiectual ;  and  his  cattle  escaped  throucrh 
it  and  were  killed.    Held,  that  whether  the  mode  adopted 


'  Laugliliu  V.  Clawson,  27  Penn.  ^  Walker  v.  Herron,  23  Tex.  55. 

328.  See  Hall  v.  Lowell,  10  Cusli.  260 ; 

2  Jones  V.  Williamson,  6  C.  B.  Pennsylvania,    &c.,    v.    Osiier,    35 

(N.  S.)924.  Penn.  60;   Zemp  v.  Wilmington, 

*  Humphries  ■«.  Parker,  52  Maine,  &c.,  9  Rich.  84. 

502.  7  Holmes  v.   Watson,  29  Penn. 

*  Cooper  V.  Waldron,  50  Maine,  457. 

80.  8  Watson   v.  Walker,  33  N.  H. 

5  Fremantle  v.  London,  &c.,  10  131. 

Com.  B.  N.  S.  88.  s  Hall  v.  LoweU,  10  Cush.  260. 


Pj56  the  law  of  new  trials.  [cii.  xi. 

^vas  reasonably  judicious,  and  whether  the  plaintitl'  was 
culpahly  negligent,  in  not  taking  away  and  securing  his 
<'attle,  wlien  he  had  reason  to  suppose  there  was  danger 
of  their  getting  on  the  track,  or  in  having  failed  to  give 
notice  to  the  company  of  the  defect;  w^ere  questions  of 
fact  properly  submitted  to  the  jury.'     So,  in  an  action  for 
injury  caused  by  the  overturning  of  a  coach,  it  appeared 
that  the  driver  ran  u[)on  a  bank ;  that  he  had  passed  the 
spot  twelve  hours  before,  but  a  landmark  had  since  been 
taken  away.     The  judge  charged  that,  as  there  was  no 
obstruction  to  the  road,  the  driver  ought  to  have  kept 
within  the  limits  of  it,  and,  as  the  injury  was  caused  by 
liis  deviation,  the  plaintiff  should  have  a  verdict.     Held^ 
there  should  be  a  new^  trial.     It  was  a  question  for  the 
iury.2     ^o  in  an  action  by  a  landlord  against  his  tenant 
for  opening  a  new^  door,  thus  prejudicing  the  reversionary 
interest,  the  judge  ordered  a  verdict  for  only  nominal 
damages.    Held,  a  question  for  the  jury.^     So,  where  there 
is  a  collision  between  vessels  lying  at  anchor  and  a  pass- 
ing steamer,  it  is  for  the  jury  to  find,  wdiether  the  injury 
arose  from  negligence  of  the  defendants,  in  not  having  suffi- 
cient and  proper  means  to  prevent  it."     So  whether  the 
adoption,  by  a  railroad  company,  of  an  improvement  en- 
hancing the  safety  of  passengers,  is  under  the  evidence  a 
necessary  and  proper  precaution.'^     Or  whether  a  manda- 
tory or  bailee  has  been  guilty  of  gross  negligence.^     So 
of  the  question  of  negligence,  in  an  action  against  a  com- 
mon carrier  of  passengers.^ 

§  135.  So  unfaithfulness  is  a  question  for  the  jury.^ 

§  136.  But  it  is  held  to  be  a  question  of  law,  what 

«  Pnlor  r.  Now  York,  tl'C,  16  N.        ^  iTogeman   v.  Western,  &c.,  3 

y.  (2  Smith)  470.  Kern.  t». 

«  Crofts  V.  Waterhouse,  3  Bing.        "  Skelley  v.  Kahn,  17  111.  170. 
319.  T  Galena,  &c.  v.  Yarwood,  17  111. 

3  Young  V.  Spencer,  10  B.  &  C.  509. 
145.  6  Berry  C.Billings,  47  Maine,  328. 

«  Holmes  n.  Watson,  29  Penn. 
457. 


CH.  XL]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  357 

amounts  to  negligence.^  Thus,  wlieii  an  overseer  is  dis- 
charged by  his  employer  for  misconduct ;  whether  the 
misconduct  complained  of  was  a  sufficient  ground  for 
discharging,  is  a  question  for  the  court.^  So  whether  cer- 
tain facts  and  evidence  set  out  on  record  show  due  dili- 
gence in  notifying  parties  to  a  bill  or  note.^  So  whether 
property  levied  on  has  been  sold  in  a  proper  manner;  and 
it  is  error  to  leave  this  to  the  jury."*  So  what  is  a  proper 
precautionary  measure  in  itself,  uninfluenced  by  rule, 
usage,  or  custom,  to  avoid  steamboat  collisions.'  Hence, 
in  some  cases  of  actions  for  negligence,  the  court  may  pass 
upon  the  question,  and  order  a  verdict  for  the  plaintifl'.^ 
Or,  on  the  other  hand,  more  especially  where  the  plaintifl[' 
has  by  his  own  showing  himself  been  guilty  of  negli- 
gence, may  order  a  nonsuit.^ 

§  136a.  Accordingly,  as  in  reference  to  other  grounds 
of  action  already  considered,  it  may  properly  be  said,  that 
negligence  is  a  mixed  question.,  of  law,  and  facts  for  the 
jury  to  find,  under  the  direction  of  the  court  as  to  what 
facts  must  be  found  to  constitute  negligence  in  law;  and, 
if  they  find  negligence,  it  will  be  presumed  that  they  be- 
lieved such  facts  found.^  In  other  words,  what  facts  and 
circumstances  constitute  evidence  of  carelessness,  is  a 
question  of  law.  But  what  particular  weight  the  jury 
will  give  to  these  facts  and  circumstances,  is  a  matter  for 
the  jury.^  Negligence  is,  in  general,  a  conclusion  from 
the  facts,  to  be  drawn  by  the  jury,  under  proper  instruc- 


>  BrocktJ.King,  3  Jones,45.  See  '  ib.;  Holden  ?;.  Liverpool,  &c., 

Briijo-s  V.  Taylor,  2  Wms.  180.  3  Com.  B.  1. 

2'Hendrickson    v.    Anderson,    5  *  Purvis  v.  Coleman,    1    Bosw. 

Jones,  246.  321  ;  Per  Bell,  J.,  Morris  v.  Litch- 

3  Early  «.  Preston,  1  P.  &.  II.  field,  35  N.  H.  277;  Iluyett  v.  Phi- 

(Va.)  228.  ladelphia,  &c.,  23  Penn.  373  ;  Old- 

»  Bevan  v.  Byrd,  3  Jones,  397.  field  v.  N.  Y.,  &c.,  3  E.  D.  Smith, 

5  Iloiiers  V.  McCune,  19  Mis.  557.  103. 

6  1  liilliard  on  Torts,  3d  ed.  117  ;  s  Gerke  v.  California,  &c.,  9  Cal. 
Templeman  v.  Ilaydou,  12  Com.  B.  251. 

507. 


358  THE    LAW    OF   NEW    TRIALS.  [ciI.  XI. 

tions.'  Though  the  facts  of  a  case  may  so  clearly  prove 
nei^ligence,  as  to  render  it  the  duty  of  the  court  to  pro- 
nounce upon  them  as  matter  of  law ;  yet,  in  cases  of  con- 
troverted facts,  the  existence  or  non-existence  of  which 
may  fairly  be  presumed  to  affect  the  mind  in  a  given  exi- 
gency, the  question  of  the  character  of  the  acts,  whether 
negligent  or  otherwise,  is  necessarily  for  the  jury.^  Ques- 
tions of  mixed  law  and  fact,  such  as  diligence,  due  care, 
skill,  &c.,  are  for  the  jury,  under  proper  instructions  from 
the  court  as  to  the  law.  The  court  may  state,  hypothe- 
tically,  whether  or  not  the  facts  if  established  support 
the  allegation ;  or  the  jury  may  find  the  facts,  specifically, 
and  the  court  will  apply  the  law.  The  jury  cannot  deter- 
mine by  what  law  their  decision  shall  be  governed.^  Thus, 
in  an  action  against  an  engineer  for  an  erroneous  survey, 
it  is  a  question  for  the  court  what  degree  of  care  and 
skill  would  absolve  him,  but  the  jury  must  determine  the 
amount  of  care  and  skill  used.''  So  the  question,  what 
constitutes  due  diligence  in  the  prosecution  of  a  claim,  on 
the  facts,  is  for  the  court.  If  the  diligence  depends  on  a 
fact,  the  jury  may  be  instructed  that  it  exists  or  not,  as 
they  may  find  that  fact.*(rt) 

'  Langhofft).  Milwaukee,  19  Wis.  »  Whirlcy  v.  Whitcman,  1  Head, 

489.        '  CIO. 

2  Pennsj'lvania,  &c.  v.  Ogier,  35  ♦  McCarty  v.  Bauer,  3  Kans.  237. 

Penn.  60.  ^  Brown  v.  Brooks,  25  Penu.  210. 


(a)  In  an  action  to  recover  damages  from  a  railroad  for  the  death  of  a 
person  run  over  by  its  cars,  the  question  of  negligence  was  for  the  jury. 
Baltimore  v.  State,  29  Md.  252,  460  ;  Northern  v.  State,  ib.  420.  So  in 
an  action  for  injury  to  a  passenger,  owing  to  its  trains  running  off  the 
track.  Wright  v.  Georgia,  34  Ga.  330.  So,  in  an  action  for  killing  an 
animal  by  neglect  to  comply  with  the  statute  in  sounding  a  bell  or 
whistle ;  the  rate  of  speed  and  the  place  where,  whether  after  or  before 
the  crossing.  Toledo  v.  Foster,  43  111.  415.  So  whether  the  defendant, 
in  an  action  against  a  carrier  for  injuries  resulting  from  the  overturning 
of  a  coach  in  which  the  plaintiff  was  a  passenger,  was  guilty  of  gross 
negligence,  and  liable  to  exemplary  damages.  AVilliamson  v.  AVcstern. 
24  Iowa,  171.     At  the  trial  of  an  indictment  against  a  railroad,  uuder  a 


CH.  XI.]        ERRONEOUS   RULINGS   OR  INSTRUOTIONS.  -    359 

§  1366.  The  court  should  not  instruct  the  jury  that  cer- 
tain acts  constitute  an  obstruction,  and  are  an  illegal  use  of 
a  street.'     So  whether  a  bridge  is  an  obstruction  to  navi- 

'  Lackland  v.  North,  34  Mis.  359. 

statute  imposing  a  penalty  for  negligence  in  certain  cases,  the  court 
should  not  take  the  case  from  the  jury,  on  the  defendant's  motion,  where 
there  is  more  than  a  mere  scintilla  of  evidence  of  negligence.  Com.  v. 
Fitchburg,  10  Allen,  189.  Whether  a  sidewalk  is  sufficiently  safe  and 
suitable,  so  as  to  relieve  a  municipal  corporation  from  liability  for  negli- 
gence, is  a  question  of  fact  for  the  jury,  or  at  most  a  mixed  question,  to 
be  submitted  to  the  jury,  unless  there  is  a  demurrer  to  the  evidence.  St. 
Paul  V.  Kuby,  8  Min.  154.  Also  the  question  of  negligence  on  the  part 
of  the  plaintiff.  lb.  It  is  held  that  a  judge  may  properly  define  the 
facts  constituting  negligence,  and  leave  it  to  the  jury  whether  such  facts 
took  place.  Catawissa  v.  Armstrong,  52  Penn.  282.  But  negligence  and 
unskilfulness  are  held  matters  of  fact,  and  their  existence  a  question  for 
the  jury.  A  court  cannot  direct  a  jury,  that  such  or  such  supposed  facts 
show  or  do  not  show  negligence.  Huelsenkamp  v.  Citizens,  34  Mis.  45. 
In  trover,  a  charge,  leaving  it  to  the  jury  to  say  whether  "they  were 
satisfied  that  the  defendant  had  sufficiently  accounted  for  his  neglect  or 
refusal  to  deliver  the  property,"  &c.,  without  informing  them  what  facts 
would  in  law  constitute  an  excuse,  is  too  indefinite.  Gragg  v.  Hull,  41 
Yt.  217.  To  warrant  the  court  in  instructing  the  jury  that  the  plaintiff 
was  guilty  of  negligence,  the  case  must  be  very  clear,  and  warrant  no 
other  inference.  Detroit  v.  Yan  Steinburg,  17  Mich.  99.  In  a  suit 
against  a  railroad  for  injuries,  the  question,  whether  the  plaintiff  was 
guilty  of  culpable  negligence,  is  ordinarily  for  the  jury.  Occasionally 
his  misconduct  is  so  clear,  that  the  judges  are  bound  to  pass  on  the  ques- 
tion of  negligence  as  matter  of  law,  and  order  a  nonsuit.  But  where 
there  is  any  conflict  in  the  evidence,  or  any  inferences  to  be  deduced  from 
the  proof,  in  regard  to  which  there  is  room  for  honest  difference  of  opinion 
between  intelligent  and  upright  men,  the  issue  should  be  submitted  to 
the  jury.  Ernst  v.  Hudson,  35  N.  Y.  9.  It  is  a  question  for  the  jury, 
whether  a  party  exercises  proper  care  in  attempting  to  cross  a  bridge  in 
a  totally  dark  night,  without  a  light.  Swift  v.  Newburg,  36  Yt.  355. 
So  whether  the  omission  of  a  guest  to  fasten  the  fan-light  over  his  door 
at  night,  which  is  too  narrow  to  allow  a  person  to  pass  through,  together 
with  his  use  of  the  fastenings  of  the  door,  constituted  negligence,  in  an 
action  against  an  innkeeper  for  the  value  of  articles  stolen  from  the  room 
at  night.  Ramaley  v.  Leland,  6  Rob.  (N.  Y.)  358.  In  an  action  to  re- 
recover  for  false  representations  made  by  a  vendor  of  a  lease,  as  to  the 
amount  of  rent  reserved  by  it,  the  question  whether  the  plaintiff,  in  omit 


360  THE    LAW    OF   NEW    TRIALS.  [CH.  XI. 

gation  is  a  question  of  fact.^     So  whether  a  fence,  which 
encroaches  on  a  highway,  is  a  nuisance.^ 

>  Selman  v.  Wolfe,  27  Tex.  G8.     561  ;   Blanc  v.  Klumpke,  29  Cal. 
2  Griffith  V.  McCullum,  46  Barb,     156. 


ting  to  examine  the  lease  when  it  was  laid  before  him  at  the  time  the 
bargain  was  closed,  was  wanting  in  care  and  prudence,  so  as  to  defeat 
his  right  to  recover,  is  a  question  for  the  court.     Clark  v.  llankin,  46 
Barb.  570.     The  question,  whether  a  boy  of  ten  years  of  age  has  suffi- 
cient capacity  to  take  care  of  himself  to  justify  his  parents  in  allowing 
him  to  be  in  the  streets  of  a  city  after  dark,  is  for  the  jury.     Lovett  v. 
Salem,  9  Allen,  557.     In  an  action  for  injuries  caused  by  a  defective 
highway,  it  is  a  question  for  the  jury  whether  the  plaintiff's  own  conduct 
contributed  to  his  injury.     Hill  v.  New  Haven,  37  Vt.  501.     If  it  is  the 
duty  of  a  servant  of  a  railroad  to  uncouple  the  cars,  and  this  cannot 
easily  be  done  while  the  train  is  still,  and  he,  in  endeavoring  to  uncouple 
them  while  the  train  is  in  motion,  steps  between  the  cars,  and  meets  with 
an  injury  which  is  caused  by  a  want  of  repair  of  the  road-bed ;  the  court 
cannot  rule,  as  matter  of  law,  that  he  was  careless,  but  should  submit 
the  question  to  the  jury,  although  he  continued    in  the  employment  of 
the  company  after  he  knew  of  the  defect.     Snow  v.  Housatonic,  8  Allen, 
441.     In  an  action  against  a  railroad  for  negligence  in  transporting  nur- 
sery stock,  it  was  for  the  jury  to  determine,  upon  the  evidence,  whether 
the  company  was  guilty  of  negligence,  and  whether  the  damaged  condi- 
tion in  which  the  stock  was  afterwards  found  resulted  from  that  negli- 
gence.    Congar  v.  Galena,  17  Wis.  477.     In  actions  for  injuries  received 
by  being  run  over,  negligence,  whether  on  the  part  of  the  plaintiff"  or 
defendant,  is  a  question  for  the  jury.     Unless  the  proof  of  negligence  on 
the  part  of  the  plaintiff"  is  so  strong,  that  the  court  would  set  aside  a 
verdict  in  his  favor  as  being  clearly  against  the  weight  of  evidence ;  it  is 
not  proper  to  grant  a  nonsuit.    Williams  v.  O'Kcefe,  9  Bosw.  536;  Smith 
V.  O'Connor,  48  Penn.  218.    When  the  testimony  in  regard  to  negligence 
causing  death  is  all  one  way,  or  when  all  the  plaintiff"'s  evidence  has  been 
put  in,  and  has  no  tendency  to  prove  negligence,  and  there  is  no  question 
as  to  the  credibility  of  the  witnesses;  the  court  may  determine  the  whole 
case  as  a  question  of  law.    Bolaiid  v.  Missouri,  36  Mis.  484.     In  an  action 
against  a  sheriff"  for  negligence  in  executing  afi./a.,  it  is  a  question  for 
the  jury,  whether  the  neglect  to  levy  upon  articles  of  a  perishable  nature 
caused  any  damage  to  the  plaintiff.    State  v.  Gemmill,  1  Houst.  9.     A. 
executed  a  note  to  B.,  giving  a  lien  upon  a  boat  to  secure  payment.     B. 
transferred  the  note  and  lion  to  C,  guaranteeing  to  pay  it  if  C.  failed  to 
get  pay  on  it  from  the  maker,  after  the  use  of  all  proper  and  reasonable 


en.  XI.]         ERRONEOUS   RULINOS   OR   INSTRUCTIONS.  361 

§  136(7.  What  constitutes  cruel  treatment,  is  a  question 
of  law,  when  a  divorce  is  sought  on  that  ground.^ 

§  137.  Waiver  is  sometimes  held  to  be  a  mixed  question 
of  law  and  fact.^  What  constitutes  an  implied  waiver  of 
a  vendor's  lien,  is  a  question  of  law.^  So  whether  there 
is  evidence  sufficient  to  establish  a  waiver,  by  the  presi- 
dent of  an  insurance  company,  of  preliminary  proof  of 
loss  under  a  policy.* 

§  138.  But,  where,  on  an  equivocal  state  of  facts,  the 
court  instructed  the  jury,  as  a  conclusion  of  law,  that 
there  was  a  waiver,  the  judgment  was  reversed  on  error.^ 
So  whether  a  demand  was  objected  to  when  rendered,  is 
a  question  for  the  jury.^  Or  whether  presentment  of  a 
bill  was  waived.^  So  A.  presented  his  claim,  for  allow- 
ance out  of  an  intestate's  estate,  to  the  probate  court. 
B.,  the  administrator,  pleaded,  that  A.  had  never  delivered 
to  him  a  copy  thereof.  A.  demurred,  because  B.  did  not 
assert  that  he  (B.)  had  not  waived  his  right  to  such  copy. 
Held,  whether  the  facts  and  circumstances  shown  in  evi- 
dence amounted  to  a  waiver  of  the  copy,  was  matter  for 
the  jury. -(a) 

'  Gliolston   V.  Gholston,  31  Ga.  ^  Traynor  v.  Johnson,   1    Head, 

625.  51. 

2  Traynor  v.  Johnson,  1    Head,  ^  Field  v.  Reid,  21  Geo.  314. 

51.  '  Curtiss  V.  Martin,  20  111.  557. 

»  Mims  V.  Lockett,  23  Geo.  287.  «  Grimes  v.  Bush,  16  Ark.  647. 

*  Spring  Garden,  &c.  v.  Evans, 
9  Md.  1. 


means.  Held,  C.  should  make  all  reasonable  endeavors  to  get  the  money 
by  enforcing  the  lien,  before  resorting  to  the  guarantor,  and  it  was  a 
question  for  the  jury  whether  he  had  made  such  endeavors.  Brainard  v. 
Martin,  36  Vt.  614. 

(a)  Whether  a  landlord  acquiesced  in  au  arbitration  in  which  his  land 
was  in  dispute  between  his  tenant  and  a  stranger,  so  as  to  be  bound  by 
it,  is  a  question  of  fact.  Proof  that  he  attended  the  arbitration  as  a 
witness,  and  did  not  on  that  occasion  object  to  the  proceeding,  is  not  in 
law  proof  of  such  acquiescence.     Russell  v.  AUard,  18  N.  H.  222.     The 


8G2  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

§  139.  "Wc  now  proceed  to  a  more  particular  considera- 
tion of  instructions  relating  to  the  testimony:  including  the 
credit  of  witnesses;  the  weight  of  evidence,  positively 
and  comparatively;  and  many  miscellaneous  points  which 
lull  under  the  same  general  head.  The  cases  are  of  great 
variety,  and  not  easily  classified,  or  always  reconcilable. 

§  139a.  The  credit  of  a  witness  is  a  question  for  the  jury.^ 
(See  §§  144,  154.)  More  especially,  it  is  not  a  question 
for  the  appellate  court.^(a) 

§  140.  A  new  trial  will  be  granted  for  a  charge,  that, 
if  the  jury  believed  the  testimony  of  a  certain  witness, 
they  ought  to  find  for  the  defendant;  other  evidence 
having  been  ottered.^ 

§  141.  It  is  error  for  the  court  to  instruct,  that  the 
direct  and  positive  knowledge  of  one  is  better  than  the 

'  Stacy  V.  Cobbs,  3G    111.    340  ;  v.  The  State,  37  ib.  383  ;  Coats  e. 

People  V.  Barry,  31  Gal.  357  ;  Dick-  Elliott,  23  Tex.  606  ;  Andersou  «. 

insoii  V.  Loveil,  3.')   N.  H.  J) ;  Mc-  Anderson,  ib.  031>. 

Pherson  v.  State,  22  Geo.  478  ;  Peo-  2  Wilcox  0.  Bootlie,  19  Ark.  684. 

pie  V.  .Tenness,  T->  Mich.  305  ;  Ri,£^>>:s  »  Tufla  v.  Seabury,  11  Pick.  140. 
V.  State,  30  Miss.  635;  Newcomb 

question,  whether  an  actual  tender  is  dispensed  with,  is  for  the  jury,  where 
one  party,  for  the  fraud  of  the  other,  has  rescinded  a  contract,  and  is 
willing  and  ready  to  return  what  he  has  received,  but  is  prevented  by 
the  declarations  of  the  other  party,  that  he  will  not  receive  it.  Wheelden 
V.  Lowell,  .'iO  Maine,  499. 

(a)  In  New  York,  where  there  is  a  question  as  to  the  credibility  of 
witnesses,  and  considerable  evidence  in  conflict  with  their  testimony,  and 
there  are  various  exceptions  in  regard  to  the  admissibility  of  testimony; 
it  is  not  proper  for  the  judge  at  the  circuit  to  take  the  case  from  the 
jury,  and  direct  a  verdict  subject  to  the  opinion  of  the  court  at  general 
term.  Sackett  v.  Spencer,  29  Barb.  180.  Where  evidence  has  been 
treated  in  the  arguments  of  counsel  on  both  sides  as  bearing  only  on  the 
credit  of  a  witness,  and  the  court  has  charged  accordingly;  no  exception 
lies  to  a  refusal  of  a  retiuest,  made  for  the  first  time  after  the  charge  has 
been  given,  to  instruct  the  jury  to  consider  the  evidence  as  evidence  in 
chief.     Wilmot  v.  Howard,  39  Vt.  447. 


CH.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  363 

doubtful  recollection  of  ten;  the  question  is  peculiarly  one 
for  the  jury  alone.^ 

§  142.  But,  in  an  action  for  fraudulent  representations 
on  the  sale  of  land,  instructions  to  the  jury,  that,  "  if  the 
only  testimony  in  relation  to  the  quality  of  the  land  was 
such  representations  as  might  be  detailed  to  them  by 
witnesses,  uncorroborated  by  anything  in  writing,  or  any 
facts  surrounding  the  transaction,  such  evidence  should 
be  looked  to  carefully  by  the  jury  ;"  and  that  "the  decla- 
rations and  representations  of  the  defendant,  in  regard  to 
the  quality  or  condition  of  the  land,  during  the  trade,  are 
important  evidence,  and  should  be  considered  by  the 
jury ;" — were  held  to  be  proper.^  So,  where  two  witnesses 
for  the  defendant,  who  set  up  a  justification  in  an  action 
for  slander,  were  contradicted  by  four  for  the  plaintiiF, 
and  the  judge  charged,  that,  being  thus  contradicted, 
the  former  were  not  to  be  believed ;  although  the  question 
was  for  the  jury,  yet,  as  they  ought  to  have  come  to  the 
same  conclusions,  a  new  trial  was  refused.' 

§  143.  Unless  there  be  some  reason  why  the  judge 
should  remark  particularly  on  the  testimony  of  a  witness, 
be  may  decline  to  comply  with  a  request  to  do  so.*  A 
charge  to  disbelieve  a  witness  is  ground  of  new  trial.' 
And,  on  the  other  hand,  the  court  in  its  charge  may  make 
an  explanation,  protecting  a  witness  from  unjust  animad- 
version of  counsel ;  especially  where  the  erroneous  ruling 
of  the  court  had  aflbrded  the  occasion  of  such  animad- 
version.^ So  a  eulogy  on  a  witness  in  the  charge  is  not 
a  ground  for  new  trial,  if  the  bill  of  exceptions  shows 
that  such  witness  was  unimpeachable.^ 

'  Dnnlap  v.  Hcarn,  37  Miss.  471.        ^  Morris  v.  Brickley,  1  Har.    «& 

2  Likes  V.  Baer,  8  Clarke  (Iowa),     G.  107. 

368.  ^  t^tate  «.  Wbit,  5  Jones,  224. 

3  Woodbeck  v.  Keller,  6  Cow.  '  The  Slate  v.  Harris,  1  Jones, 
118.  190. 

*  Findly  v.  Ray,  5  Jones,  125. 


>■ 


364  THE  l'aw  of  new  trials.  [CII.  XL 

§  144.  Whenever  a  person  is  held  competent,  and 
allowed  to  testify,  as  we  have  seen  (§  139«),  the  jury  are 
the  exclusive  judges  of  his  credibility.  And  it  is  error 
to  instruct  the  jury,  "that,  if  they  believe  any  witness 
has  sworn  falsely  and  knowingly  as  to  any  material  fact, 
they  are  bound  to  disregard  his  testimony  altogether."X«) 

»  Lett  on  V.  Young,  2  Met.  (Ky.)     558;  McCraryB.Crandall,  1  Clarke, 

117. 


(a)  A  witness  was  strongly  impeached  in  part  by  his  own  admission, 
but  the  judge  merely  stated  to  the  jury  that  his  testimony  was  compe- 
tent, and  they  might  give  it  such  weight  as  they  thought  it  deserved. 
"  This  implied  that  they  had  an  uncontrolled  discretion  to  do  as  their 
judgments  might  direct,  without  any  legal  restraint  as  to  the  manner  of 
exercising  it.     The  court  ought  to  have  charged  the  jury,  that  the  testi- 
mony of  Fuller  was  so  strongly  impeached  as  to  justify  them  in  disre- 
garding it  altogether ;  the  unsupported  testimony  of  a  single  witness, 
who  swore,  at  one  time,  in  direct  contradiction  to  the  testimony  given  by 
him  at  another,  in  relation  to  the  same  transaction,  was  not  entitled  to 
credit,  and  ought  not  to  be  regarded."     Per  Woodworth,  J.,  Dunlop  v. 
Patterson,  5  Cow.  243.     An  instruction  that,  in  order  to  authorize  the 
jury  to  disbelieve  the  testimony  of  a  witness,  there  must  be  something  in 
his  manner  or  conduct,  in  giving  his  testimony,  or  in  the  testimony  of 
other  witnesses,  sufficient  to  satisfy  the  minds  of  the  jury,  that  what  he 
has  stated  is  false;  is  erroneous,  in  that  it  does  not  leave  the  jury  at 
liberty  to  disbelieve  a  witness  on  account  of  interest.     New  Orleans  v. 
Allbritton,  38  Miss.  242.     An  instruction,  in  an  action  for  slander,  that 
there  is  "  an  oddity  and  want  of  symmetry  in  the  language  sworn  to  by 
the  defendant  which  the  jury  might  take  into  consideration  in  determin- 
ing whether  the  defendant  did  add  said  words  or  not,"  is  not  subject  to 
exception.     Maybee  v.  Fisk,  42  Barb.  326.     A  remark  of  a  judge  in  re- 
gard to  the  respectability  of  a  witness  is  ground  for  a  new  trial,  unless 
the  testimony  of  the  witness  is  immaterial.     McMiun  v.  Whelan,  27  Cal. 
300.     In  an  action  against  an  indorser  of  a  note,  after  proof  of  demand 
and  notice,  and  the  allegation  of  due  notice  being  controverted,  it  is  no 
ground  of  exception,  that  the  judge  called  the  attention  of  the  jury  to 
the  fact  that  the  defendant  did  not  testify,  as  a  matter  that  they  might 
consider,  and  give  it  such  weight  as  they  thought  it  might  deserve.  Union 
Bank  v.  Stone,  50  Maine,  595.     Where  the  testimony  of  a  witness  for 
the  plaintiff  and  that  of  the  defendant  were  in  direct  conflict,  and  the 
former  was  supported  by  another  witness,  it  was  error  for  the  court  to 
instruct  the  jury,  that,  if  they  believed  that  the  first  two  witnesses  were 


CH.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  365 

But  it  is  proper  to  instruct,  in  such  a  case,  tliat  they  are 
to  distrust  the  witness,  though  they  are  not  to  disbelieve 
him  as  to  other  points,  if  satisfied  that  he  there  speaks 
the  truth, ^  So  it  is  not  error  for  the  judge  to  refuse  to 
charge,  that  the  evidence  of  a  witness,  who  had  made  a 
misstatement,  must  be  rejected  altogether.^ 

§  144(Z.  "Where  a  judge,  in  his  charge  to  the  jury,  after 
stating  that  the  testimony  of  a  witness  is  destroyed  when 
his  character  for  truth  is  impeached,  added:  "  But,  if  an 
equal  number  of  witnesses,  of  equal  respectability  and 
means  of  knowledge,  be  produced  to  sustain  his  reputa- 
tion, his  character  will  stand  as  if  no  impeachment  had 
been  made  or  attempted ;"  and  that  it  was  "  the  province 
of  the  jury  to  say,  under  all  the  circumstances,  whether 
the  witness  was  impeached  or  not:"  held,  no  ground  for 
a  new  trial.^ 

§  145.  Where  witnesses  exhibit  feeling  and  partiality, 
the  judge  may  comment  upon  such  deportment,  as  calcu- 
lated to  affect  their  credit.*  So  the  court  may  instruct 
the  jury  to  consider  the  credibility  of  a  witness  who  has 
testified  to  a  forgery  by  himself,  connected  with  the  cause 
of  action.^ 

§  146.  Where  oral  testimony,  as  to  the  contents  of 
letters,  is  put  into  a  case,  without  objection,  or  notice 

•  McCrary  7).  Crandall,  1  Clarke,        *  State  v.  Nat,  6  Jones,  114. 
117.  5  McDauiel  v.  Walker,  29  Geo. 

2  State  v.  Noblett,  2  Jones,  418.       266. 

2  Bakeman  v.    Rose,  18    Wend. 
146. 

entitled  to  equal  credit,  the  testimony  of  the  third  "  created  a  prepon- 
derance of  testimony  in  favor  of  the  plaintiff  unless  there  was  some  fact 
or  evidence  tending  to  corroborate  the  defendant."  A  judgment  for  the 
plaintiff  should  be  reversed  for  such  error,  although  the  court  also  charged 
the  jury,  generally,  that  they  were  the  exclusive  judges  of  the  credi- 
bility of  witnesses.     Ely  v.  Tesch,  17  Wis.  202. 


3G6  THE    LAW    OF   NEW    TRIALS.  [ClI.  XT. 

to  produce  the  letters;  the  court  may  properly  refuse  to 
instruct  the  jury,  that  they  are  authorized,  from  non- 
production  of  the  letters,  to  regard  the  oral  testimony  with 
suspicion.^ 

§  147.  If  a  statute  allows  parties  to  testify,  and  pro- 
vides, that  the  court  or  jury  shall  give  such  weight  to 
their  testimony  as  in  view  of  the  situation  of  the  witness 
and  other  circumstances  it  may  be  fairly  entitled  to;  it  is 
for  the  jury  alone  to  judge  of  all  the  circumstances  they 
choose  to  notice,  and  it  is  error  for  the  court  to  instruct 
the  jury  what  circumstances  they  are  to  consider,  or  under 
what  circumstances  they  must  believe  the  party.^ 

§  148.  A  new  trial  cannot  be  had,  for  refusal  to  instruct 
that  "  hearsay  evidence,  or  what  may  be  said  by  parties, 
which  may  be  given  in  evidence  by  witnesses,  is,  or  may 
be,  according  to  the  circumstances,  the  weakest  kind  of 
testimony ;"  where  such  instruction  would  be  necessarily 
applied  to  the  admissions  of  the  parties.^ 

§  148a.  "Where  the  indignation  of  the  judge  led  him  to 
characterize,  as  monstrously  infamous,  the  character  of  a 
convicted  felon  who  was  chief  witness  for  the  prisoner; 
the  court  would  not  grant  a  new  trial  therefor.* 

§  1486.  "Where  a  witness  could  not  say,  w^hether  a  con- 
versation, as  to  the  unsoundness  of  an  animal  sold,  took 
place  before  or  after  the  sale ;  an  instruction  that,  on  the 
question  of  scienter^  the  evidence  amounted  to  nothing, 
was  held  correct.' 

§  148e.  It  is  not  error  for  a  judge  to  express  an  opinion 
as  to  the  comparative  weight  of  the  testimony  given  by  two 

'  Claiborne  v.  Tanner,  18  Tex.        ^  Likes  v.  Baer,  8  Clarlie,  308. 
68.  ^  Sarah  «.  State,  28  Geo.  570. 

«  Allen  V.  Lyles,  35  Miss.  513.  ^  Hiusou  v.  King,  5  Joues,  393. 


CH,  XI.]         ERKONEOUS   RULINGS   OR   INSTRUCTIONS.  367 

witnesses,  and  leave  the  jury  to  be  sole  judges,  both  of  the 
weight  of  the  testimony,  and  credibility  of  the  witnesses.^ 
iN'or  to  charge,  that, "  if  witnesses  differ,  and  all  have  equal 
opportunities  of  knowing  the  facts  about  which  they  tes- 
tify, then,  even  if  one  has  sworn  affirmatively,  the  jury 
are  not  bound  to  believe  him,  but  in  determining  what  is 
correct  testimony  will  look  to  all  the  facts  and  circum- 
stances of  the  case."^  So,  where  discrepancies  between 
the  testimony  of  witnesses  for  the  State,  before  the  coro- 
ner's inquest,  and  before  the  trial  jury,  were  relied  on  to 
discredit  the  witnesses ;  a  charge  that  "  evidence  was  often 
loosely  taken,  and  perhaps  no  very  great  weight  should 
be  given  to  these  discrepancies,"  was  held  no  ground  for 
a  new  trial.^  So  instructions  were  sustained,  that  a  dis- 
position on  the  part  of  a  witness,  who  was  the  girl  seduced, 
testifying  in  an  action  jper  quod,  by  her  father,  to  prevari- 
cate on  immaterial  points,  should  not  affect  her  credit  on 
material  points,  corroborated  by  circumstances,  or  other 
witnesses;  and  (upon  the  defendant's  request)  that  the 
jury,  in  estimating  her  credibility,  should  compare  her 
testimony  given  on  the  bastardy  trial,  and  her  former 
statements,  with  her  present  testimony,  and  should  observe 
her  bearing,  her  own  contradictions,  and  her  position  with 
reference  to  the  parties.^  So  a  remark  of  the  judge,  that 
a  discrepancy  between  the  testimony  and  the  former  state- 
ments of  a  witness  seemed  naturally  enough  accounted 
for,  is  no  ground  of  new  trial.* 

§  149.  A  new  trial  will  not  be  granted,  in  either  a  civil 
or  criminal  case,  because  the  court  refused  to  charge  the 
jury  that  "they  must  receive  the  evidence  of  verbal  con- 
fessions with  great  caution."^ 


'  Porter  i).  Seiler,  23  Penn.  424.  ^  Jackson  v.  Packard,  6  Wend, 

2  Taylor  v.  Kelly,  31  Ala.  59.  415. 

3  State  V.  Smith,  10  Rich.  341.  e  gtate  v.  Clump,  IG  Mis.  385. 
*  Richardson  v.  Fonts,  11  Ind. 


466. 


368  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

§  150.  "Where  part  of  the  declarations  of  a  party  con- 
fessed a  prima  facie  cause  of  action,  and  another  part 
matter  in  avoidance;  it  was  held  not  to  be  error  in  the 
judge,  to  instruct  the  jury  that  they  might  reject  the 
latter  declarations,  if  they  believed  them  untrue,  and  find 
a  verdict  for  the  plaintiff  on  the  former  part.^  I^or,  where 
evidence  was  given  to  the  court,  in  presence  of  the  jury, 
of  confessions  illegally  obtained,  and  afterwards  the  judge 
rehearsed  the  evidence  thus  given,  for  the  purpose  of 
cautioning  them  against  permitting  it  to  have  any  effect 
on  their  minds,  except  to  weaken  the  force  of  voluntary 
confessions  subsequently  made.^ 

§  151.  Evidence  given  to  contradict  a  witness,  and 
which  is  competent  for  that  purpose  only,  ought  not  to  be 
left  to  the  jury  by  the  court  as  tending  to  establish  the 
main  allegation  of  the  issue.^ 

§  152.  It  is  no  ground  of  exception,  where  counsel  dis- 
agree as  to  the  words  of  a  witness,  and  the  recollection  of 
the  judge  is  indistinct;  if  he  states  to  the  jury  the  re- 
spective claims  of  the  counsel,  and  the  substance  of  his 
own  notes,  with  instructions  as  to  the  effect  of  the  words, 
as  claimed  on  each  side.^ 

§  153.  It  is  no  ground  for  a  new  trial,  that  the  judge 
charged  the  jury,  upon  the  question  of  testamentary  capa- 
city, "that  he  relied  with  more  confidence  upon  the 
opinion  of  the  intelligent  physician  who  attended  upon 
the  testator  during  his  last  illness,  than  upon  the  specu- 
lative opinions  of  four  physicians  who  had  not  seen  the 
testator  during  his  illness,  and  whose  opinions  were  based 
upon  the  nature  of  his  disease."®     But  a  charge  that,  be- 

>  Rankin  v.   Thomas,    5   Jones,  «  Fry  v.  Bennett,  3  Bosw.  200. 

435,  5  Kirkwood  ».  Gordon,  7  Rich. 

2  State  v.  Gregory,  5  Jones,  315.  474. 
»  Henson  v.  King,  2  Jones,  385. 


CH.  XI.]         ERRONEOUS   RULINGS   OR    INSTRUCTIONS.  869 

cause  a  witness  was  a  clergyman,  therefore  his  testimony 
was  entitled  to  more  weight,  is  ground  for  a  new  trial.^ 
So,  upon  a  question  of  handwriting,  experts  testified,  both 
from  a  general  knowledge  of  the  party's  hand,  and  from 
a  comparison  made  in  court.  The  judge  instructed  the 
jury,  that  "  the  evidence  of  experts,  not  acquainted  with 
the  party's  handwriting,  was  the  lowest  kind  of  evidence." 
Held,  although  the  instruction  was  inapplicable,  it  was 
likely  to  mislead  the  jury.^ 

§  154.  It  is  for  the  jury  to  determine  what  weight  is 
to  be  given  to  the  statement  of  a  witness.  (See  §§  139a, 
144.)(a)  They  can  judge  from  his  manner  of  giving  tes- 
timony, from  the  attendant  circumstances,  and  from  the 
probability  of  the  fact  to  which  he  testifies,  whether  it  is 
true  or  not.^  So,  in  the  absence  of  legal  presumptions,  it 
is  for  the  jury  alone  to  determine  what  amount  of  evi- 
dence is  required  to  produce  conviction  in  their  minds ; 
and  a  charge  which  instructs  them,  "that  in  civil  cases 
all  that  is  required  is  that  the  proof  shall  preponderate  in 
favor  of  one  party  or  the  other,  and  they  must  find  accord- 
ing to  the  preponderance  of  the  proof,"  invades  their  pro- 
vince, and  is  therefore  erroneous.'* 

§  155.  A  charge  to  the  jury  in  a  civil  case,  that  they 
may  find  according  to  the  weight  of  probability,  is  erro- 
neous ;  the  defendant's  property  is  not  to  be  taken  upon 
a  balancing  of  mere  probabilities;  the  evidence  must  be 
satisfadojy.^    But  an  instruction,  that  the  plaintifif  must 

1  Sneed  v.  Creath,  1  Hawks,  309.     241  ;  Strozier  v.  Carroll,    31    Geo. 

2  McGregor  v.  Armill,  2  Clarke,     557. 

30.  ^  Mays  v.  Williams,  27  Ala.  267. 

3  Cheatham  v.  Riddle,  12  Tex.  ^  Parker  v.  Johnson,  25  Geo. 
112  ;  State  v.  Anderson,  19    Mis.     576. 

(a)  Under  (Mass.)  Gen.  Sts.,  c.  115,  §  5,  the  court  cannot  express  an 
opinion  to  juries  as  to  the   credibility  of  witnesses.     Com.  v.  Barry,  9 
Allen,  276. 
24 


370  THE    LAW    OF    NEW    TRIALS.  [CII.  XI. 

prove  beyond  a  "rational  donht"  the  identity  of  a  slave 
sued  for,  is  not  erroneous,  as  in  eivil  cases  it  is  the  duty 
of  the  jury  to  decide  in  favor  of  the  party  on  whose  side 
the  weight  of  evidence  prei»onderates,  and  according  to 
the  reasonable  probability  of  the  truth. '(«) 

'  Yarbrough  v.  Arnold,  30  Ark.  592. 

(a)  An  instnu'tion  is  erroneous,  which  states  what  the  testimonj'  of  a 
witness  is.  Southern  v.  Kendrick,  40  Miss.  874.  A  court  may  instruct 
the  jury,  that  tlie  testimony  of  a  witness,  if  true,  will  establish  a  speci- 
fied fact,  leaving  the  jury  to  decide  upon  his  credibility.  The  propriety 
of  such  instruction  depends  on  the  fulness,  certainty,  and  clearness  of  his 
testimony  upon  the  point  in  issue.  Russell  v.  Ely,  2  Black,  575.  It  is 
for  the  jury  to  say,  whether  the  evidence  is  sufficient  to  establish  that 
the  discharge  of  a  trust  had  been  procured  by  fraud  ;  and  therefore  it  is 
error  to  instruct  them  that  it  cannot  be  established  by  the  testimony  of 
a  single  witness.  Layton  v.  Hall,  25  Tex.  204.  It  is  error  to  charge, 
that  the  jury  must  find  for  the  defendant,  unless  such  a  thing  is  positively 
proved,  because  this  would  exclude  circumstantial  evidence.  Glass  v. 
Blalock,  80  Geo.  133.  Affirmative  testimony  is  not  always  preferred 
before  negative,  and  so  to  instruct  a  jury  is  erroneous.  Eockwood  v. 
Poundstone,  38  111.  199.  Instruction  on  trial  of  an  indictment,  that,  if 
the  jury  find  that  the  witness,  who  had  stated  a  conversation  by  defen- 
dants among  themselves  containing  admissions,  did  not  hear  all  the  con- 
versation between  the  prisoners,  and  did  not  pretend  to  have  understoo<l 
all  they  said,  her  testimony  is  entitled  to  much  less  weight  than  if  she 
had  heard  and  understood  the  whole  of  the  conversation  upon  the  same 
subject;  but  it  is  for  the  jury  to  say  whether  she  related  the  words  or 
substance  of  the  language  used,  and  whether  such  language  was  in  rela- 
tion to  distinct  facts,  and  how  far  it  tends  to  prove  defendants  guilty. 
Held,  correct.  AVhite  v.  Walker,  31  111.422.  In  an  action  for  seduction, 
.where  both  the  daughter  and  tlie  defendant  testify  and  directly  con- 
tradict each  other,  and  there  is  testimony  tending  to  sustain  her; 
it  is  error  to  instruct  the  jury  that  "  as  to  the  main  fact  of  sexual  inter- 
course, the  daughter  affirms  it  and  the  defendant  denies  it,  and,  if  the 
two  seem  equally  to  claim  your  credence,  you  cannot,  in  such  case,  find 
for  the  plaintiff,  because,  as  to  that  fact,  which  is  radical  in  the  case, 
there  is  no  preponderance  for  the  plaintiff."  Pruitt  v.  Cox,  21  Ind.  15, 
Instruction  in  the  trial  of  an  issue  as  to  the  genuineness  of  a  deed,  "  If 
there  is  a  reasonable  theory,  consistent  with  the  evidence,  by  which  the 
iurv  can  find  in  favor  of  the  genuineness  of  the  deed,  and  consistent  with 
the  honestv  and  truthfulness  of  all  the  witnesses  in  the  case,  it  is  the 


CII.  XI.]         ERRONEOUS   RULINGS    OR    INSTRUCTIONS.  371 

§  156.  Questions  often  arise,  from  communications  to 
the  jury,  made  by  the  judge  out  of  the  regular  course  of 


duty  of  the  jury  to  adopt  that  theory,  in  preference  to  one  by  which  per- 
jury or  forgery  may  be  involved  on  the  part  of  a  portion  of  the  witnesses." 
Held,  correct.  AVright  v.  Carillo,  22  Cal.  595.  The  judge  called  the 
attention  of  the  jury  to  the  sworn  contradiction  of  herself  by  the  prin- 
cipal witness,  and  said  that  it  was  a  strong  circumstauce  tending  to  dis- 
credit her  testimony  on  the  last  trial,  but  that  the  amount  of  credit  due 
to  that  testimony  \vas  a  question  for  them  to  determine,  adding,  that,  if 
a  reasonable  doubt  arose  in  their  minds,  it  was  their  duty  to  acquit  the 
defendant.  Held,  correct.  Dunn  v.  People,  29  N.  Y.  (2  Tiffa.)  523. 
"When  a  witness,  testifying  to  material  matters,  is  contradicted  by  other 
witnesses,  it  is  not  erroneous,  where  the  credibility  of  the  witness  is  sub- 
mitted to  the  jury,  to  charge  them,  that,  if  they  believe  he  has  know- 
ingly sworn  falsely  in  reference  to  any  fact,  he  is  not  entitled  to  be  be- 
lieved in  reference  to  any  other  fact  testified  to  by  him.     Roth  v.  Wells, 

29  N.  Y.  (2  TifFa.)  471.  It  was  claimed  by  the  defendant's  counsel,  that 
certain  depositions  were  guarded  and  avoided  all  details,  and  that  the 
deponents  swore  to  only  enough  to  make  out  their  case.  Held,  the  court 
properly  instructed  the  jury,  that,  if  they  found  the  depositions  subject 
to  this  objection,  it  was  a  matter  that  they  might  take  into  consideration 
in  weighing  the  testimony  of  these  witnesses,  and  that  the  whole  ques- 
tion of  the  truth  of  the  depositions  was  for  the  jury.  Clough  v.  Patrick, 
37  Vt.  421.  A  new  trial  was  ordered,  where  the  court  refused  to  charge 
that,  "  if  the  jury  believe  from  all  the  evidence  that  the  witness  (a  prin- 
cipal one)  has  testified  falsely  in  respect  to  any  material  fact,  it  is  their 
duty  to  disregard  the  whole  of  her  testimony  ;"  the  record  showing  that 
the  defendant  might  have  been  prejudiced  by  the  charge.  Campbell  v. 
State,  3  Kans.  488.  The  withholding  the  benefits  of  a  legal  rule  of  evi- 
dence is  an  error  materially  prejudicial,  in  the  sense  of  ?  276  of  the 
Criminal  Code.  Ibid.  It  is  error  to  tell  the  jury  that  the  evidence  of 
two  witnesses  conflicts,  when  the  conflict  is  denied.     Black  v.  Thornton, 

30  Geo.  361.  A  charge  to  the  jury,  "You  are  to  consider  the  conflict- 
ing evidence  and  all  the  circumstances  and  appearance  of  the  two  A.'s 
testimony  and  of  W.'s  testimony,  and  say.  are  you  satisfied  to  a  reason- 
able certainty  that  the  A.'s  spoke  the  truth,  and  that  they  are  not  mis- 
taken ;"  is  erroneous,  as  it  discriminates  against  the  A.'s.  Ibid.  "Where 
there  is  a  conflict  of  testimony,  the  court  ought  to  charge  the  jury,  that 
it  is  their  duty  to  reconcile  the  testimony  if  they  can.  so  that  the  whole 
may  stand  ;  but,  if  irreconcilable,  then  they  must  find  according  to  the 
weight  of  evidence.  Ibid.  It  is  error  for  the  court  to  give  an  importance 
and  bearing  to  evidence  to  which  it  is  not  entitled,  and  which  is  calculated 
to  mislead  the  jury.     Ibid, 


372  THE    LAW    OF    NEW    TRIALS.  [CH.  XI. 

the  trial.  Tlic  regular  time  for  instructions  is  in  giving 
the  charge  to  the  jury  at  the  close"  of  the  trial.^  A 
new  trial  was  not  granted,  where  a  jury  came  in,  not 
havino'  agreed,  and  counsel  then  for  the  first  time 
asked,  certain  instructions,  which  were  refused.  The 
court  (Poland,  C.  J.)  say :  "  The  rule  of  practice  requires 
that  any  sjiecial  requests  to  charge  should  be  presented  to 
the  court  by  the  opening  of  the  argument  for  such  party, 
and  though  this  is  not  always  very  rigidly  enforced,  yet 
to  allow  a  party  under  the  circumstances  of  this  case,  after 
the  jury  liad  been  in  consultation  on  the  case,  and  returned 
into  court  disagreed,  when  the  court  could  have  no  reason- 
able time  or  opportunity  for  reflection  or  consideration,  to 
present  new  requests  for  instructions,  would  be  wholly  in- 
tolerable. "^  Where  the  jury  had  retired,  and  in  a  short 
time  returned  into  court,  stating  that  they  could  not 
agree,  and  asking  to  be  discharged,  it  being  then  tw^elve 
o'clock  Saturday  night,  and  the  last  day  of  the  term;  and 
the  court  refused  to  instruct  the  jury,  as  requested  by  the 
plaintiff,  whether  the  finding  on  Sabbath  morning,  after 
the  expiration  of  the  term,  would  be  valid,  and  whether 
they  were  bound  longer  to  deliberate  in  their  room ;  but 
told  the  jury  they  had  been  sworn,  and  had  better  do 
their  duty,  and  requested  them  to  return:  held,  such  re- 
fusal to  instruct  was  no  error.^  It  is  held  that  a  remark 
of  the  judge,  in  reply  to  the  question  of  a  juror,  as  to 
the  effect  of  the  verdict  upon  matters  not  directly  in- 
volved in  the  suit,  is  no  ground  of  exception,  if  substan- 
tial justice  is  done,  even  though  the  jury  may  have  been 
influenced  by  such  remark.*  So  where  a  jury  could  not 
agree,  and,  the  parties  objecting  to  their  discharge,  the 
court,  in  the  presence  of  the  parties,  gave  them  further 
and  legal  instructions,  after  which  they  retired,  and  re- 


>  Raymond     n.     Ilowland,      17        ^  Rosscr  v.  McColly,  0  Iiul.  587. 
Wend.  :WJ.  »  Train  v.  Collins,  2  Pick.  145. 

2  Cady  V.  Owen,  34  Verm.  598, 
603. 


CII.  XI.]        ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  873 

turned  with  a  verdict ;  held  no  error.^  So,  on  the  request 
of  the  jury  for  further  instructions,  the  judge  said,  "I 
perceive  from  your  questions  that  your  minds  have  heen 
misled  by  a  case  read  by  defendant's  counsel,"  and  then 
stated  to  them,  "  that  they  should  receive  the  law  only 
from  the  court;  that  counsel  often  read  books  to  the  jury 
to  explain  themselves  more  clearly  and  forcibly,  but  that 
they  must  not  receive  them  as  law,  except  so  far  as  sanc- 
tioned by  the  court."  Held,  there  was  no  error  in  these 
instructions.^  So  an  explanatory  charge  is  no  ground  of 
new  trial.^  So  a  judge  may  arrange  the  evidence  and 
comment  upon  it,  even  though  the  arrangement  and  com- 
ment may  have  the  appearance  of  an  argument.  And 
when  a  jury  came  in  by  leave  of  court  without  having 
agreed,  and  stated  that  they  found  it  difficult  to  reconcile 
the  testimony  of  two  of  the  witnesses,  and  the  judge  told 
them  that  it  was  a  case  in  which  they  ought  to  agree; 
that,  as  the  facts  to  which  the  witnesses  testified  occurred 
at  different  times,  they  might  exist  consistently  with  each 
other;  that  there  was  not  necessarily  any  conflict  in  the 
testimony,  and  that  it  was  their  duty  to  reconcile  the 
testimony ;  and,  on  their  coming  in  again  without  per- 
mission, he  urged  the  importance  of  their  agreeing,  which 
they  finally  did,  being  directed  to  retire  again :  it  was 
held  no  ground  of  new  trial.^  JSTor  is  it  ground  of  new 
trial,  that,  after  the  charge,  the  defendant's  counsel  moved 
for  a  particular  instruction,  which  was  given.^  ISTor  that 
the  judge,  in  open  court,  in  the  presence  of  the  counsel, 
answers  a  written  inquiry  sent  from  the  jury  by  the  officer 
in  attendance.^  Or  answers  an  inquiry  of  the  foreman, 
which  he  came  in  to  make,  after  the  jury  had  retired, 
without  communicating  its  purport  to  the  parties  or  their 
counsel.'^     Nor  that  he  unintentionally  omitted  to  read 

»  Hogg  V.  State,  7  Ind.  551.  s  SaAvyer  v.  Merrill,  6  Pick.  478. 

2  Cliamberlaiu  v.  Masterson,  26        ^  Goodman  v.  Norton,  5   Sliep. 
Ala.  371.  381. 

3  Morris  v.  The  State,  25  Ala.  57.        ^  Goldsmith     v.     Solomons,      2 
*  Emery  v.  Estes,  31  Maine,  155.     Strobh.  29G. 


374  THE    LAW    OF    NEW    TRIALS.  [CH.  XI. 

certain  parts  of  the  testimony  of  a  witness,  which  the 
jury  had  returned  to  hear,  neither  party  culling  the  jus- 
tice's attention  to  the  omission.' 

§  157.  For  the  court  to  give  instructions  to  the  jury 
during  the  hours  of  recess,  without  notice  to  the  parties 
or  their  counsel,  and  in  their  absence,  is  error.^  So,  after 
the  jury  have  retired,  it  is  error  to  allow  them  to  come 
into  court  and  instruct  them,  in  the  absence  of  the  parties 
or  their  counsel;  and  such  instructions  will  be  considered 
important,  if  the  contrary  is  not  shown,  from  the  fact  that 
the  jury  have  asked  for  them.''  But  a  new  trial  was  re- 
fused for  the  repetition  of  the  charge  to  the  jury,  though 
the  parties  were  absent,  during  the  recess  of  the  court.* 
And  although  the  right  to  communicate  with  the  jury 
during  their  deliberations,  to  withdraw  from  their  con-  , 
sideration  erroneous  instructions,  and  to  give  additional 
ones,  strictly  applies  only  to  proceedings  done  in  open 
court;  slight  deviations  from  this  rule  do  not  necessarily 
vitiate  a  verdict.' 

§  158.  It  is  held,  in  New  Hampshire,  that  the  giving 
of  written  instructions  upon  questions  of  law,  at  the 
request  of  the  jury,  after  they  have  retired,  is  a  matter  of 
familiar  practice,  and  a  verdict  will  not  be  disturbed  on 
that  account." 

§  159.  Omission  to  comply  with  a  statute,  which  pro- 
vided that  the  names  of  jurors  should  be  called,  when 
they  are  recalled  for  instructions,  was  held  no  ground  of 
exception,  unless  some  injury  results  from  the  omission — 
the  statute  being  merely  directory.^ 

1  Whitney  v.  Crim,  1  Hill,  01.  ^  Bassett    v.    Salisbury,    &c.,    8 

2  Campbell  v.  Beckett,  8   Ohio    Fost.  438. 

(N  S  )  210.  5  Hall  V.  State,  8  Ind.  439. 

3  Redman  v.  Gulnac,  5  Cal.  148.        ^  Allen  v.  Aldrich,  1)  Fost.  63. 

7  State  V.  Burge,  7  Clarke,  255. 


CH.  XL]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  375 

§  160.  The  refusal  of  the  court  to  listen  to  written 
requests  for  a  special  charge,  regardless  of  their  character, 
because  ofterecl  at  the  conclusion  of  the  charge  as  given, 
is  error. ^ 

§  161.  Upon  the  trial  of  an  issue  of  the  validity  of  a 
will,  at  which  a  former  will  has  been  offered  in  evidence, 
the  refusal  of  the  presiding  judge  to  answer  an  inquiry 
of  a  juror,  as  to  what  would  become  of  the  property  of  the 
testator  if  the  will  on  trial  should  be  set  aside,  was  held 
no  ground  for  a  new  trial.^  So  refusing  to  instruct  the 
jury  as  to  the  effect  of  certain  written  evidence,  at  the  time 
it  was  offered ;  no  exception  being  taken  to  the  charge.' 

§  162.  A  new  trial  was  granted,  where  there  was  a 
request  to  charge  on  a  certain  point  which  was  forgotten 
by  the  judge,  who,  however,  inquired  at  the  end  of  the 
charge  if  any  point  was  omitted,  and  was  answered  in  the 
negative.^ 

§  163.  In  general,  objections  to  the  charge  must  be 
made  before  the  jury  retire.^  But  where  a  bill  stated  the 
charge  of  the  court  below  on  points  of  law,  and  that  the 
jury  found  a  verdict  and  that  the  'party  excepted ;  it  was 
held,  that  it  should  be  intended  that  the  exception  was 
seasonably  taken,  else  the  judges  would  not  have  signed  it.^ 

§  164.  That  the  judge,  at  a  trial,  informed  the  jury  what 
amount  of  damages  would  carry  costs,  is  no  ground  for  a 
new  trial.^  Kor,  in  an  action  for  assault  and  battery,  a 
charge  as  to  the  effect  of  a  verdict  for  the  plaintiff  upon 
the  costs,  and  a  refusal  to  charge,  that,  in  fixing  the 

'  Wood  V.  McGuire,  17  Geo.  303.        ^  Montgomery  v.  Gilmer,  33  Ala. 

2  Woodbury  v.  Obear,  7  Gray,     116. 

467.  6  Harlow  v.  Humiston,  6  Cow. 

3  Raymond  B.Howland,  17  Wend.     189. 

389.  ^  Atkinson  v.  Newton,  29  Eng. 

<  Gillespie  I). Shuliberrier,  5  Jones,     Law  and  Eq.  479. 
157. 


376  THE    LAW    OF    NEW    TRIALS.  [CIL  XI. 

aiiiouni  of  a  verdict  for  tlie  iilaiiitilf,  the  jury  had  nothing 
to  do  -with  the  question  of  costs,  or  whether  their  verdict 
woukl  carry  full  costs. ^ 

§  165.  It  is  ground  of  new  trial  that  the  judge  does  not 
inform  the  jury  what  is  the  proper  measure  of  damages, 
on  an  issue  in  which  it  is  admitted  that  the  plaintiff  is 
entitled  to  a  verdict  and  to  damages;  although  the  point 
was  not  taken  hy  the  X)hu"tiff'  at  the  trial."  Or  that  the 
instruction  is  such  as  probahly  to  diminish  or  increase  the 
quantaiii  of  damages.^  So  wdiere,  in  an  action  for  libel, 
the  charge  of  the  court  was  erroneous  and  adverse  to  the 
plaintiff,  and  the  jury  gave  a  verdict  for  merely  nominal 
damages;  held,  the  plaintiff  was  entitled  to  a  new  trial, 
although  the  character  of  the  offence  charged  in  the  libel 
was  not  such  as  to  justify  a  heavy  verdict,  but  entitled  the 
plaintiff"  to  a  verdict  which  would  carry  full  costs.^(a) 

§  166.  A  new  trial  is  sometimes  refused,  even  if  it  might 
otherwise  be  granted,  where  only  nominal  damages  can  be 
recovered.^    As  wdiere  the  judge  wrongly  instructed  the 

'  Waffle  V.  Dillpiibcck,  Law  Reg.  '  Hotchkiss  v.  Porter,  30  Conn. 

Oct.  18G3,  p.  7G.J  (N.  Y.),  39  Barb.  414. 

2  Knight  «.  Egerton,  13  Eng.  ^  Hopkins  v.  Grinnell,  28  Barb. 
Law  and  Eq.  rm.  533. 

3  Neel    V.    Hughes,    10    Gill    &> 
Johns.  7. 


(a)  What  the  life  of  one  person  is  worth,  in  a  pecuniary  sense,  to  an- 
other, is  a  question  incapable  in  its  nature  of  exact  determination.  Al- 
though the  statute  confides  it  to  a  jury,  the  court  must  so  far  supervise 
the  verdict  as  to  see  that  it  is  not  the  result  of  unreasoning  prejudice  or 
passion.  Chicago  v.  Shannon,  43  111.  338.  Li  an  action  against  a  rail- 
road, for  injuries  resulting  from  a  collision,  an  instruction,  which  tends  to 
leave  the  measure  of  damages  entirely  to  the  discretion  of  the  jury,  is  I 
erroneous.  Peini.  R.  R.  Co.  v.  Books,  57  Pcnn.  339.  It  is  the  province 
of  a  jury,  in  an  action  of  assumpsit  for  work  and  labor,  to  affix  a  value 
to  services,  according  to  their  nature  and  extent,  as  proved;  and  it  is  not 
necessary  for  witnesses  to  estimate  their  value  in  money.  jNIadden  v 
Porterfield,  8  Jones  L.  IG6. 


CH.  XI.]         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  377 

jury,  in  an  action  for  assault  and  battery,  that  the  assault 
was  justifiable  for  the  purpose  of  preventing  a  trespass 
upon  land,  which  both  parties  claimed,  each  ordering  the 
other  to  leave;  and  the  verdict  was  for  the  defendant. 
The  plaintift'  could  have  recovered  only  nominal  damages, 
and  no  end  of  justice  was  defeated.^ 

§  167.  It  remains  to  speak  more  particularly  of  motions 
for  new  trial,  made  in  connection  with  requests  for  specified 
instructions.  Even  independently  of  such  requests,  as  we 
have  already  seen  (§  5),  it  is  in  general  the  right  of  parties 
to  have  the  instructions  of  the  court  upon  material  points 
of  the  case.-  Thus  a  new  trial  was  granted,  because  "  a 
material  point  was  not  left  to  the  jury  nor  observed  upon 
by  the  judge."^  Though  it  is  sometimes  held,  that  an 
omission  to  charge  upon  important  points  of  law  is  not 
per  se  sufiicient  ground  of  new  trial,  unless  a  failure  of 
justice  is  thereby  caused.^  So  a  new  trial  was  granted, 
where  the  case  was  not  argued,  but  left  by  counsel  to 
the  judge  to  sum  up  and  give  the  necessary  instructions; 
but  he  omitted  to  do  it,  regarding  the  case  as  clear  for 
the  plaintiff;  and  the  jury  found  a  verdict  for  the  de- 
fendant.^ 

§  168.  But  if  there  be  any  doubt  as  to  the  effect  of 
mere  pmissions  to  instruct,  it  seems  to  be  well  settled,  that 
the  verdict  will  be  set  aside,  where  counsel  call  upon  the 
judge  to  give  instructions  which  the  case  requires,  and 
which  conform  to  the  facts,  and  he  refuses  to  do  so.*  So 
a  new  trial  will  be  granted,  unless  instructions  are  ffiven 


'  Hj^att  V.  "Wood,  3  John.  239.  (the  form  of  exception  was,  that  the 

2  PiyoriJ.  Coggin,  17  Geo.  444.  verdict  was  against  evidence). 

3  Per  Burrongh,  J.,  Morrison  v.  ^  State  v.  Cliristmas,  6  Jones, 
Muspratt,  13  Moo.  231  (or  rather  a  471;  Coolv«.  Brown,  30  Maine,  443; 
fact  bearing  upon  a  general  point,  42  Maine,  340  ;  4  Jones,  199  ;  Bal- 
which  was  left  to  tiicm).  timore,  &c.  v.  PoUj-,  14  Gratt.  447. 

••  Calbreath   v.  Gracy,    1  Wash.  See   Angusta,    &c.    v.  Abbott.    13 

198.  ]\Id.  348 ;  Jamson  «.  Quivey,  5  Cal. 

5  Page  V.   Pattee,    G  Mass.  459  490. 


378  THE    LAW    OF    NEAV    TRIALS.  [CII.  XL 

Oil  eufli  point  upon  which  they  arc  requested.^  Although 
they  need  not  be  in  the  same  language,  or  as  a  requested 
instruction.^  So  where  the  instructions  given  have  been 
lost  and  cannot  be  proved,  and  where  pro})er  instructions 
were  refused,  and  it  does  not  clearly  appear  that  the  ver- 
dict is  right;  a  new  trial  should  genenilly  be  ordered.^ 

§  100.  And  it  is  held  the  duty  of  the  judge  to  charge 
the  jury  as  to  all  the  material  points  which  are  supported 
b}'  proof,  whether  such  points  were  made  verbally  or  in 
writing.''  So  an  instruction  prayed  for  must  be  given  or 
refused  as'  asked,  and  cannot  be  modified.^  Where  in- 
structions are  asked  for,  the  court  may  change  the  phrase- 
ology, but  cannot  alter  the  sense."  Thus,  although  an  ap- 
pellate court,  when  not  sitting  as  a  court  of  equity,  might 
believe  that  certain  evidence  is  not  strong  enough  to  re- 
quire the  jury  to  find  fraud;  yet,  if  there  is  any  evidence 
tending  to  prove  it,  a  prayer  that  the  jury  may  be  in- 
structed to  declare  an  instrument  void,  if  they  find  the 
grantor  was  imposed  upon  and  deceived  in  executing  it 
by  the  grantee,  cannot  properly  be  rejected.^  Nor  is  it 
sufiicient,  wdiere  a  judge  is  requested,  in  the  hearing  of  the 
jury,  to  give  in  a  charge  a  legal  proposition;  that  he 
replies,  "  Well,  I  charge  it,  "without  anything  more.^  So, 
when  the  provisions  of  a  statute  are  clear  and  explicit, 
and  the  court  below  is  requested  to  charge  the  jury  in 
conformity  thereto,  and  refuses,  such  refusal  is  error.'' 

§  170.  More  especially  will  a  new  trial  be  granted, 
where  the  court  refuses  to  charge  upon  legal  propositions 
material  to  the  case,  and  at  the  same  time  expresses  an 
opinion  upon  the  question  of  fact  as  to  the  sufficiency  of 

'  Zabriskie  v.  Smitli,  3  Kern.  322.  s  Russell  v.  Amador,  3  Cal.  400. 

2  Anderson   v.  ]?atli,  42   Maine,  6  Conrad  v.  Lindley,  2  Cal.  173. 

340  ;  i\Iarshall  v.  Fliun,  4   Joues,  ?  Baltimore  v.  Williams,   6  Md. 

199.  23.'5. 

'  Wcisigcr  v.  Chisholm,  22  Tex.  «  Cokiuitt  v.  Tliomas,  8  Geo.  2r)8. 

C70.  s  Benedict  v.  Hoggin,  2  Cal.  385. 

*  Pryor  v.  Coggin,  17  Geo.  444. 


CH.  XI.]         ERRONEOUS   RULINGS    OR   INSTRUCTIONS.  379 

proof.'  Or  if  a  proper  instruction  be  refused,  notwith- 
standing the  assent  of  the  other  party  to  its  being  given. ^ 
Thus  a  new  trial  was  granted,  for  refusal  to  instruct  tlie 
jury  that  they  had  a  right  to  infer  payment  from  the 
evidence  offered  to  prove  it.  Such  refusal  was  held 
equivalent  to  a  declaration  that  all  the  testimony  upon 
which  the  instruction  was  predicated  should  be  disre- 
garded.^ So,  if  the  court  refuse  to  charge  the  jury  in  a 
trial  for  larceny  of  bank-notes,  that  they  must  be  satisfied 
that  the  notes  were  genuine;  it  is  ground  for  a  new  trial.* 
And  a  statute,  which  enacts  that  "  no  new  trial  shall  be 
granted  by  reason  of  the  ruling  of  any  judge  that  the 
stamp  upon  any  document  is  sufficient,  or  that  the  docu- 
ment does  not  require  a  stamp,"  does  not  apply,  where,  on 
objection  to  the  sufficiency  of  a  stamp,  the  judge,  with 
consent  of  the  parties,  abstains  from  expressing  an  opinion 
on  the  point,  and  reserves  it  for  the  decision  of  the  court 
above.*  So,  in  Georgia,  by  the  trial  act  of  1853-54,  the 
refusal  of  the  court  to  give  a  legal  charge  when  requested, 
and  the  granting  a  new  trial,  are  made  convertible  terms. 
The  court  above  has  no  discretion  in  the  matter.  If  the 
charge  requested  was  authorized  by  the  pleadings  and  the 
proof,  a  new  trial  must  be  granted,  whether  injury  has 
been  done  or  not.^  Though  it  is  otherwise  where  the 
charge  requested,  although  authorized  by  the  pleadings, 
is  unsupported  by  proof.^ 

§  171.  But  positions  of  law,  for  which  counsel  con- 
tended at  the  trial,  not  presented  as  requests  for  instruc- 
tions, can  only  be  noticed  as  explanatory  of  the  instruc- 
tions given.     They  do  not  present  matter  of  exception,  if 


'  Lewis  V.  The    State,  4  Ohio,        *  Low  v.  People,  2  Parker,  37. 
389.  ^  Eames  v.  Smith,  33  Eng.  Law 

2  Layson  v.  Galloway,  4  Bibb,  and  Eq.  489. 

100.  «  Terrv  v.  State,  17  Geo.  204. 

3  Miles  V.  Major,  3  J.  J.  Mar.        ?  Boyd  v.  State,  17  Geo.  194. 
153. 


380  THE    LAW    OF   NEW    TRIALS.  [CII.  XI. 

tlicy  are  not  directly  noticed  by  tlic  court.'  And  the 
contending  for  a  certain  ])riiiciple  of  law,  hy  counsel,  is 
not  equivalent  to  a  request  for  instructions  ui)on  that 
point.^  Nor  arc  instructions  to  he  regarded  as  erroneous, 
merely  because  they  do  not  embrace  every  aspect  in  which 
the  law  applicable  to  the  case  might  have  been  presented. 
jSTor,  as  we  have  seen  (§  5),  is  the  mere  omission  of  the 
court  to  give  instructions  which  would  have  been  proper, 
error,  if  such  instructions  were  not  asked  for  by  either 
party.3  So  it  is  held  that  the  right  to  demand  instruc- 
tions must  have  some  limit,  and  the  court  above  will  not 
sanction  its  abuse.^ 

§  111(1.  In  a  very  recent  case  in  Connecticut,  being  an 
action  brought  for  wounding  with  a  pistol,  the  court  re- 
marked as  follows:  "The  defendant  did  in  substance  re- 
quest the  court  to  charge,  that  if  they  found  the  fact 
proved  as  claimed,  he  would  be  justified  in  self-defence  in 
using  the  pistol  as  he  did — that  the  rule  of  law  is  '  that 
a  man  may  lawfully  take  the  life  of  another  who  is  un- 
lawfully assailing  him,  if  in  imminent  peril  of  losing  his 
life  or  suffering  extreme  bodily  harm,  &c.'  What  a  man 
may  lawfully  do  he  may  lawfully  attempt  to  do,  and  that 
request  embodied  in  substance,  and  with  sufficient  dis- 
tinctness, a  well-settled  specific  rule  of  law,  applicable 
alike  in  criminal  prosecutions  and  civil  suits,  and  to  the 
facts  of  the  case  as  claimed.  The  court  did  not  conform 
to  the  request.  The  charge  as  given  informed  the  jury 
what  the  '  great  principle'  of  the  law  of  self-defence  is, 
and  correctly ;  but  that  was  not  all  to  which  the  defen- 
dant was  entitled.  It  is  not  for  juries  to  apply  '  great 
principles'  to  the  particular  state  of  facts  claimed  and 
found,  and  thus  make  the  law  of  the  case.     When  the 

'  Stowellv.  Goodenow,  31  Maine,        »  Linn  v.  Wriirlit,  18  Tex.  317; 
538.  Faninhivr  v.   Dallas,    30  ib.   200  ; 

2  Tenney  v.  Butler,  32   Maine,     Fisher  v.  Stevens,  IG  111.  3!)7. 
2G9  ''  Goodrich  v.  Eastern  Kailroad, 

38  N.  II.  3'JO. 


CH.  XI.J         ERRONEOUS   RULINGS   OR   INSTRUCTIONS.  381 

facts  are  admitted,  or  proved  and  found,  it  is  for  tlio  conrt 
to  say  what  the  law  as  applicable  to  them  is,  and  whether 
or  not  tliey  furnish  a  defence  to  the  action,  or  a  justifica- 
tion of  the  injury  if  that  be  the  issue.  And  so,  where 
evidence  is  offered  by  either  party  to  prove  a  certain  state 
of  facts,  and  the  claim  is  made  that  they  are  proved,  and 
the  conrt  is  requested  to  charge  the  jury  what  the  law  is 
as  applicable  to  them,  and  what  verdict  to  render  if  they 
find  them  proved,  the  court  must  comply."  And  this 
view  is  fortified,  by  reference  to  an  express  statute  as  to 
the  duty  of  the  court  in  deciding  questions  of  law.' 

§  172.  It  forms  no  ground  of  exception  to  instructions, 
that  they  are  not  given  in  any  precise  form,  provided  the 
instructions  proper  are  given  in  any  form.-  As,  in  a  case 
of  usury,  refusing  to  charge  that  the  usury  must  be  proved 
beyond  a  reasonable  doubt,  if  the  jury  were  told  that  they 
must  be  satisfied  that  the  usury  was  made  out.^ 

§  173.  A  party  cannot  complain  of  an  instruction  given 
at  his  own  instance.''  Or  that  the  court  gave  the  charge 
exactly  as  it  was  asked  for,  and  did  not  give  further  in- 
structions.^ Or  for  a  refusal  to  instruct  contrary  to  a 
previous  instruction  given  at  the  party's  request.^  Nor 
because  a  charge  was  withdrawn  at  the  request  of  the 
party  for  whom  it  was  made.^  Nor  for  a  refusal  to  give 
certain  instructions,  unless  the  prayer  be  for  instruction 
upon  a  point  in  issue,  supported  by  j^ertinent  and  relevant 
evidence,  direct  or  indirect,  and  which  may  properly  be 
given  in  the  words  of  the  prayer.^ 


•  Morris «.  Piatt,  Am.  Law.  Reg.,  ?  Harrison  v.  McGehee,  24  Geo. 

July,  1865,  p.  524.  530. 

2  Walcott  V.  Keith,  2  Fost.  196.  «  Bagley  v.  Smith,  10  K  Y.  489; 

3  Acby  V.  Rapalye,  1  Hill,  9.  Goodrich  v.  Eastern,  &c.,  38  N.  H. 
1  Flowers  v.  Helm,  29  Mis.  324.  390  ;  Pasley  v.  Kemp,  22  Mis.  409  ; 
5  Alston  V.  Grantham,  26  Geo.  Chicago,  etc.  ».  George,  19  III.  510; 

874.  State  v.  Hall,  39  ]\Iaine,  107 ;  State 

*>  Cumberland,  &c.  v.  Tilghman,  v.  Robinson,  ib.  150. 
13  Md.  74. 


382  THE    LAW    OF    NEW    TRIALS.  [cil.  XI. 

§  174.  So  the  court  is  not  bound  to  cliargo  upon  any 
hypothetical  point  which  is  not  jiertinent  to  the  issue, 
however  correctly  it  may  he  stated,  especially  if  thereby 
the  attention  of  the  jury  mi<;-ht  be  diverted  from  the  facts 
proved.^  Nor  to  give  a  charge  bad  as  matter  ol"  law, 
though  the  error  may  be  such,  as,  under  the  circumstances 
of  the  case,  would  not  be  fatal  if  it  were  given.'^ 

§  175.  So  the  court  may  refuse  to  state  the  law  on  a 
different  case  from  that  which  the  evidence  tends  to 
prove.3  (See  §  186.)  Or  to  give  instructions,  which  refer 
to  a  question  for  the  court  and  not  for  the  jury." 

§  176.  "Where  instructions  in  part  erroneous  are  asked, 
the  court  may  either  entirely  withhold  them,  or  adopt 
them  so  far  as  they  are  correct.^  When  parties  incorpo- 
rate into  a  request  for  instructions  matter  impertinent 
and  improper,  together  with  that  which  is  pertinent  and 
proper,  the  court  may  rightfully  reject  the  whole.*"'  If  a 
prayer  for  instructions  is  incorrect  in  any  material  ])art, 
it  is  error  to  grant  it,  and  ground  for  a  reversal  on  ajt- 
peal.^  But,  where  the  plaintiff  prays  for  an  instruction, 
wdiich  requires  the  jury  to  find  all  that  is  essential  to  his 
right  to  recover,  surplusage  will  not  vitiate  it.^ 

§  177.  When  a  charge  asked  needs  to  be  qualified  or 
explained,  to  prevent  it  from  misleading  the  jury,  it  may 
be  refused;  as,  for  example,  a  charge  that  the  plaintiff,  in 
order  to  avoid  the  statute  of  limitations  when  pleaded  to 
an  open  account,  must  prove  not  only  a  subsequent  pro- 
mise, but  also  that  it  was  made  "with  a  full  knowledge 
of  all  the  facts.'"^ 

1  New  Brunswick  Co.  v.  Tiers,  4  ^  Bryant  v.  Crosby,  40  Maine.  9. 
2abr   G'.»7.  ^  Plank  Road  Co.  v.  lIoH'man,  9 

2  Vislier  V.  Webster,  1,'J  Cal.  58.  Md.  55!). 

3  Hicks  V.  Bailey.  16  Tex.  229.  »  Edelin  v.  Sanders,  8  Md.  118. 

*  Bran"-er   v.  Chevalier,  9    Cal.  ^  Ilolston    v.   Lan-^djn,  26    Ala. 

353.  660;  Tifield  v.  Adancs,  3  Clarke, 

5  Marlborough  i\SisRon, 23 Conn.  487. 
44. 


en.  XL]         ERRONEOUS    RULINGS   OR    INSTRUCTIONS.  383 

§  178.  On  the  other  hand,  the  judge  lias  a  right  to  mo- 
dify the  instructions  asked;  and  if,  as  given,  they  state 
the  law  correctly,  it  is  not  an  error  of  which  the  party 
can  complain,  that  they  were  not  given  exactly  as  asked, 
or  that  one  of  the  instructions  taken  alone  stated  the  law 
too  broadly,  though  it  would  not  have  been  error  so  to 
have  given  them.^ 

§  179.  Exception  does  not  lie  to  the  charge  and  each 
and  every  part  thereof,  if  any  part  is  correct.^  Nor,  on 
the  other  hand,  to  a  refusal  of  a  judge  to  charge  several 
matters  in  one  continuous  proposition,  if  any  part  of  the 
entire  series  proposed  is  wrong.^ 

§  180.  Under  the  act  of  Maryland,  of  1825,  c.  117,  a 
prayer  that  the  jury  be  instructed,  "that  upon  the  whole 
evidence  it  is  competent  for  them  to  find  for  the  defend- 
ant," is  too  general.'*  So  where  there  are  facts  adduced  in 
evidence,  but  which  are  not  deemed  legally  sufficient  or 
proper  to  support  the  issues,  under  the  act  of  1825,  the 
prayer  should  direct  the  mind  of  the  court  specifically 
to  the  supposed  errors  or  omissions  in  the  proof;  and  a 
general  prayer  to  instruct  the  jury,  that  there  is  no  evi- 
dence on  which,  under  the  pleadings,  they  could  find  for 
the  plaintift',  would  be  rightly  rejected.  Otherwise  if 
there  is  no  evidence,  or  an  entire  failure  of  evidence  to 
support  the  issues.* 

§  181.  Exceptions  do  not  lie,  for  the  rejection  of  prayers 
for  instructions  tending  to  embarrass  the  jury.  The  court 
is  not  bound  to  construe  them.^  Nor  for  refusal  of  a  charge 
which  admits  of  two  constructions,  one  of  which  is  calcu- 
lated to  confuse  and  mislead  the  jury.^ 

'  Mask  V.  State,  36  Miss.  77 ;  ^  Hatton  v.  McClish,  6  Md.  407. 
State  V.  Wilson,  8  Clarke,  407.  ^  Baltimore,    &g.   v.   Resley,    14 

2  Dows  V.  Rush,  28  Barb.  157.  Md.  424. 

3  Vallance  v.  Kin";,  3  Barb.  548.        '  Rolston   v.   Langdon,  26   Ala. 
*  Warner  v.  Hardy,  6  Md.  525.  660 ;  Roots  v.  Tyner,  10  Ind.  87. 


384  THE   LAW    OF   NEW    TRIALS.  [CH.  XI. 

§  182.  On  tlio  other  hand,  wliere  the  instructions  wore 
correct,  and  ?iot  calculated  to  mislead  the  jury,  a  party, 
who  has  not  prayed  to  have  them  made  more  specific, 
cannot  complain  of  them  for  want  of  clearness.^  So, 
wliere  numerous  instructions  were  asked,  and  a  general 
one  given,  a  new  trial  will  not  be  granted,  unless  the 
specific  instructions  desired  were  then  pointed  out.^  l^or 
if  the  instructions  cover  the  points  presented,  although 
specific  answers  were  not  given  to  each  point  in  detail ; 
if  the  party  was  not  thereby  prejudiced.^ 

§  183.  A  new  trial  wnll  not  bo  granted,  on  account  of  a 
general  charge  in  answer  to  separate  points.'*  ISTor  because 
the  instruction  requested  and  given  was  not  sufiiciontly 
explicit.^  Nor  wliere  a  requested  instruction  is  refused ; 
upon  the  ground  that  an  instruction  substantially  similar 
assumes  facts  of  which  there  is  no  evidence.^ 

§  184.  But  a  charge  is  erroneous  wdiich  instructs  the 
jury,  "that,  if  they  found  there  was  a  conflict  between 
the  special  charges  given  by  the  court,  at  the  defendant's 
request,  and  the  main  charge,  then  the  latter  must  prevail."'' 

§  185.  A  new  trial  will  not  be  granted,  for  refusal  of  an 
instruction  already  given  in  substance,^  although  in  more 
general  terms.^  More  especially  when  the  repetition  would 
give  the  principle  undue  prominence.^''  l^or  if  the  quali- 
fications of  a  general  rule  have  been  once  stated,  though 
the  rule  is  afterwards  stated  without  them."     Thus,  in  an 

'  "Wright  V.  Boynton,  37  N.  II.  ^  Philadelphia,  &c.  v.  Howard, 

9;    Waters   v.    Bristol,    20   Conn.  13  How.  U.  S.  807. 

398;  Bast  ^.  Alibrd,  20  Tex.  22G.  ^  Spivey   v.   State,  20   Ala.   00; 

2  Zabrisliie    v.    Smith,   3    Kern.  Chamberlain  y.  IMasterson,  ib.  371. 
322.  ^  Mary,  Arc.  V.Mcintosh,  37  Miss. 

3  Deakers    v.    Temple,   &c.,   41  G71 ;  Tucker  v.  Peaslee,  30  N.  H. 
Penn.  234.  107. 

4  Groft    V.    Weakland,    &c.,    34  »  Moye  ».  Herndon,  SOMiss.  110. 
Penn.  304.  '"  l*owell  v.  Messer.  18  Tex.  401. 

5  Chiles  V.  Drake,  3  Met.  (Ky.)  "  Belknap  v.  Wendell,  30  N.  H. 
146.  250. 


CH.  XI.]         ERRONEOUS    RULINGS   OR   INSTRUCTIONS.  385 

action  by  a  physician  to  recover  for  professional  services, 
the  judge,  being  asked  to  charge  that  the  plaintiff  was 
not  entitled  to  recover,  unless  he  proved  to  the  satisfac- 
tion of  the  jury  that  he  was  a  regular  physician,  substi- 
tuted for  the  word  regular  the  words  skilful  and  efficient. 
Held,  there  was  no  error.'(rt) 

§  186.  A  court  may  refuse  to  instruct  a  jury  on  a  point 
on  which  no  testimony  Avas  ofiered.^  Instructions  are  to 
be  predicated  on  the  facts  proved.^  (See  §  175.)  Nor  will 
exceptions  lie,  where  the  judge  directs  the  jury  to  the 
real  matters  of  controversy,  but  declines  to  charge  on  a 
point  which  is  superfluous  or  irrelevant.'*  Where  the 
plaintiff  claimed  title  under  a  mortgage  from  C,  to  secure 
C.'s  notes,  payable  in  three  months ;  and  the  plaintiff^  im- 
mediately exposed  the  goods  for  sale,  and  was  in  the  act 
of  selling  them,  from  time  to  time,  as  he  could  find  pur- 
chasers, the  mortgagor  being  insolvent;  when  the  defen- 
dant, a  deputy  sheriff",  attached  them,  in  suits  against  the 
original  owners,  claiming  that  the  conveyances  to  the 
plaintiff  were  fraudulent,  as  against  creditors;  and  the 
defendant,  in  an  action  of  trespass,  prayed  the  court  to 


'  Mays  V.  Ilogan,  4  Tex.  26.  State  v.  Harrison,  5   Jones,   115 ; 

2  Freeman      v.      Edmunds,      3     Smith  v.  Sasser,  ib.  388. 
Hawks,  5.  *  Den  v.  Wintermute,  1  Green, 

3  Whitney  v.  Goin,  20  N.  X.  354;     117;  Wayne,  &c.  v.  Berry,  5  Ind. 

286. 


(a)  See  Treat  v.  Lord,  42  Maine,  5.52 ;  Dunu  v.  ISIoody,  41  Maine, 
239 ;  State  v.  Knight,  43  ib.  11 ;  State  v.  Neville,  6  Jones,  423 ;  Moffitt 
V.  Cressler,  8  Clarke  (Iowa).  122  ;  McTavish  v.  Carroll,  13  Md.  429 
Oliver  v.  Chapman,  15  Tex.  400 ;  Holbrook  v.  Utica,  etc.,  2  Kern.  236 
Corry  v.  Tompkins,  17  Geo.  351;  Sherman  v.  Wakeman,  11  Barb.  254 
Main  v.  AfcCarty,  15  111.  441 ;   Price   v.  Alexander,  2  Greene,  427 
Thompson  v.  Grimes,  5  Ind.  385 ;  Duffell  v.  Noble,  14  Tex.  640 ;  State 
V.  Knight,  43  Maine,  11 ;  Pettigrew  v.  Barnum,  11  Md.  434 ;  Clark  v. 
"Wood,  34  N.  H.  447 ;  Steamboat,  &c.  v.  Buckner,  12  B.  Mon.  246  ;  Taber 
V.  Hutson,  5  Ind.  322 ;  Prior  v.  AVhite,  12  111.  261 ;  Dennis  v.  McLauriu 
'  31  Miss.  606. 
25 


386  THE    LAAV    OF   NEW    TRIALS.  [CII.  XI. 

charge  the  jury,  that  the  plaiiitiif  had  no  right  to  sell 
the  goods  until  after  his  notes  fell  due ;  which  the  court 
omitted  to  do :  held,  the  defendant,  being  a  stranger  to 
the  mortgage,  had  no  right  to  interfere  between  the 
plaintiff  and  his  mortgagor;  and,  as  evidence  of  fraud, 
the  defendant  had  the  benefit  of  the  fact  before  the  jury  ; 
consequently,  the  omission  of  the  court  was  no  ground 
for  a  new  trial.' 

§  187.  The  judge  may  and  should  refuse  to  express  an 
opinion  upon  the  facts.  Where  there  was  some  cir- 
cumstantial evidence  of  payment,  and  the  court  charged 
that  there  was  no  evidence  of  payment,  the  defendant's 
counsel  requested  the  court  to  charge  the  jury  as  follows: 
"  The  court  cannot  undertake  to  say,  whether  there  was 
proof  of  payment ;  that  is  entirely  within  the  province  of 
the  jury."  This  was  refused ;  but  in  lieu  thereof  the 
court  charged,  that,  "  if  there  was  any  evidence  of  pay- 
ment introduced  to  them,  they  must  find  accordingly." 
Held,  that  all  this  taken  together  was  not  leaving  the 
jury  to  determine  upon  the  facts,  without  being  influenced 
by  the  opinion  of  the  judge  on  those  facts.^ 

§  188.  "When  the  court  is  asked  to  charge  that  a  certain 
principle  is  law,  provided  the  evidence  sustains  it ;  it  is 
no  error  in  the  court  to  give  the  converse  of  the  prin- 
ciple, provided  the  proof  preponderates  that  way.^  But 
the  refusal  of  an  instruction  is  not  equivalent  to  the 
'  assertion  of  the  converse  of  the  proposition  contained  in 

1  Potter  V.  Payne,  31  Conn.  3G1.     See  Clark  v.  Hammerle,  27  Mis. 

2  Gay  V.  McGulHn,  9  Tex.  501.        55. 

3  Thomas  v.  State,  27  Geo.  287.        ^  Miles  v.  Davis,  19  Mis.  408. 

(a)  As  to  instructions  m  writing,  see  Rising,  Sec.  v.  Conway,  7  Ind. 
187 ;  Kenworthy  v.  Williams,  5  ib.  375 ;  Taber  v.  Hutson,  ib.  322 ; 
Green  v.  Lewis,  13  111.  642  ;  Parris  v.  The  State,  2  Greene,  449 ;  Leighton 
V.  Sargent,  11  Fost.  119.    A  party  who,  after  the  evidence  is  all  in,  and 


CII.  XI.]         ERRONEOUS    RULINGS   OR   INSTRUCTIONS.  387 

before  either  parly  has  arjiuecl  the  cause  to  the  court  and  jury,  requests 
the  judge  to  reduce  his  charge  to  writing  before  giving  it  to  the  jury, 
is  entitled  to  have  the  charge  so  reduced  to  writing,  under  (AVis.)  Rev. 
Sts.,  c.  132,  ?  12;  and  a  rule  of  court,  that  unless  such  request  shall  be 
made  at  or  before  the  commencement  of  the  trial  it  shall  be  deemed  to 
have  been  waived,  cannot  be  sustained.  Patterson  v.  Ball,  19  Wis.  243. 
The  better  practice  is,  for  the  court  to  put  aside  the  instructions  asked, 
and  to  cover  the  whole  ground  of  the  controversy  in  a  methodical  and 
corrected  charge  of  its  own,  stating  the  questions  of  fact  to  be  decided, 
and  the  law  applicable  thereto  under  the  issues  and  the  evidence.  State 
V.  Collins,  20  Iowa,  85.  Instructions  which  are  asked  should  not  be  read 
in  hearing  of  the  jury  before  they  are  passed  upon  by  the  court,  nor 
should  the  jury  be  allowed  to  know  what  they  are  if  they  are  refused. 
Waldie  v.  Doll,  29  Cal.  555.  It  is  not  error  for  the  court  to  refuse  in- 
structions Avhich  have  not  been  submitted  within  the  time  required  by  a 
rule  of  court.  Ibid.  Where  the  answers  of  one  defendant  to  interroga- 
tories have  been  admitted,  after  objection,  as  evidence  against  him  alone, 
it  is  proper  to  refuse  a  motion  of  the  others  to  instruct  the  jury  that 
they  should  not  regard  them  as  evidence  against  any  of  the  defendants. 
Lazzell  v.  Mapel,  1  West  Va.  43.  A  prayer  ofifered  by  defendants  who 
were  sued  as  partners,  segregating  two  instances  or  transactions  testified 
to  and  mentioned  in  the  prayer,  tending  to  negative  a  partnership,  and 
asking  the  instruction  of  the  court  thereon,  and  e.xcluding  from  the  jury 
other  evidence  which  might  have  induced  the  plaintiff  to  believe  the  de- 
fendants were  partners,  is  calculated  to  mislead  the  jury.  Folk  v.  Wil- 
son, 21  Md.  538.  An  instruction  may  be  modified  by  the  court,  although 
the  modification  is  suggested  by  the  counsel  opposed  to  the  error.  The 
fact  that  the  instruction  is  subject  to  a  wrong  construction  is  sufficient 
to  justify  the  court  in  rejecting  it  and  adopting  a  modification  which 
corrects  the  error.  Blackburn  v.  Beall,  21  Md.  208.  Refusal  of  instruc- 
tions, though  correct,  is  not  error,  if  those  given  covered  the  entire  case 
and  submitted  it  properly  to  the  jury.  Laber  v.  Cooper,  7  Wall.  565; 
Philadelphia,  &g.  v.  Harper,  29  Md.  330;  Davis  v.  Perley,  30  Cal.  630. 
Or,  where  the  instructions  are  correct,  an  omission  to  give  others  specifi- 
cally asked  and  refused,  unless  it  distinctly  appears  that  they  were  ap- 
propriate in  the  position  of  the  cause  and  necessary  to  its  just  decision. 
Wells  V.  Prince,  15  Gray,  562.  Or,  in  case  of  exclusion  from  a  prayer 
of  a  fact  necessary  and  material  to  support  the  instruction  sought.  Mary- 
land IK  Porter,  19  Md.  458.  Or  the  accidental  omission  to  charge  as  re- 
quested, counsel  not  having  called  the  attention  of  the  judge  to  the 
omission.  Shewmake  v.  Jones,  37  Geo.  102.  A  party  is  entitled  to  full, 
fair,  and  explicit  answers  to  his  prayer  for  instruction,  if  pertinent ;  but,, 
when  the  evidence  so  requires,  it  is  not  only  the  right  but  the  duty  of 
the  court  to  make  such  qualification  as  will  adapt  the  instruction  to  the 


388  THE    LAW    OF   NEW    TRIALS.  [CII.  XI. 

facts,  and  onuLle  the  jury  to  make  the  proper  discrinuriation.     Hays  v. 
Paul,  f)!    IVnn.  134.      A  re<piest  for   an    instruction,  tliat,  under   the 
pleadings  and  evidence,  the  opposite  party  is  not  entitled  to  recover, 
should  be  refused  as  too  general.     Dorsey  v.  Harris,  22  Md.  8.5  ;   Weber 
V.  Zimmerman,  ib.  156.     But  it  is  not  a  good  reason  for  refusal  to  give 
instructions,  that  they  were  unnecessarily  lengthy  and  numerous.     Nor 
that  a  request  is  too  late,  when  made  during  the  opening  and  only  argu- 
ment.    McCaleb  v.  Smith,  22   Iowa,  242.     Nor  is   it  proper,  after  re- 
fusing an  instruction  for  defect  of  form,  to  refuse  to  give  another  good 
in  form  and  involving  the  same  legal  principle,  merely  because  tendered 
after  the  time  first  fixed  for  presentation  of  instructions;  if  the  instruc- 
tion could  not  injure  the  opposite  party,  and  the  refusal  deprived  the 
party  of  the  application  of  a  legal  principle  to  which  he  was  entitled  by 
the  facts.  Hill  v.  Wright,  23  Ark.  530.    A  prayer,  correctly  enunciating 
that  certain  facts,  which  the  jury  might  otherwise  have  disregarded,  con- 
stituted evidence  on  a  question  at  issue,  may  properly  be  granted.  Colvin 
V.  Warford.  20  Md.  357.     An  instruction,  which  ignores  material  facts 
of  which  there  is  some  evidence,  is  properly  refused.     Thomas  v.  Stern- 
heimer,  29  Md.  268.   Where  a  part  of  entire  instructions  asked  are  good 
and  part  bad,  the  court  may  simply  refuse  them.     Mayberry  v.  Kelly,  1 
Kans.  116.     The  refusal  of  a  request  "  to  charge  more   particularly" 
upon  some  point — as  "  what  constitutes  a  private  road" — presents  no 
question  for  review  and  no  ground  for  reversal.     Karber  v.  Nellis,  22 
Wis.  215.     So  a  refusal  to  give  a  proper  instruction,  but  not  as  favor- 
able to  the  appellant  as  an  instruction  actually  given.     State  v.  Moore, 
25  Iowa,  128. 


CH.  XII.]  RULINGS.      DISCRETION.  BS9 


CHAPTER  XII. 

DISCRETION. 

1.  General  rule— examples.  I  tion  of  witnesses  ;  depositions  ;  re- 

0.  Order  of  testimony ;  examina- 1  calling  -witness  ;  leading  questions. 

§  1.  While,  as  we  have  seen  in  the  last  chapter,  there 
is  no  error  iu  the  trial  of  causes,  which  the  law  is  more 
careful  to  correct,  than  that  which  consists  of  wrong 
rulings  or  instructions  to  the  jury  in  matters  of  law;  it 
remains  to  be  fully  explained,  that  there  are  certain  classes 
of  such  rulings,  which  are  held  to  be  discretionary  with 
the  judge  by  whom  they  are  made,  and  therefore  final, 
and  not  subject  to  revision  by  motion  for  a  new  trial,  bill 
of  exceptions,  or  otherwise. 

§  2.  It  is  well  settled,  that  exceptions  do  not  lie  to  the 
decisions  of  a  judge  in  matters  discretionary  with  him.^rt) 
In  a  late  case  the  court  remark :  "  It  is  necessary  that  the 
making,  modifying,  and  revoking  of  orders  relating  to 
the  course  of  the  trial  shall  be  left  to  the  discretion  of  the 
presiding  judge. "^    And  in  another  case :  "  As  to  matters 

'  Moody  V.  Hinkley,  34  Maine,  Wend.  454;  Planters',  &c.«.  Willis, 

200  ;    Sisco  v.  Harmon,    9   Verm.  5  Ala.  770  ;  Woodruff  v.  Hurson, 

129;  State  i;.  Fox,  1  Dutch.  566;  32  Barb.  561.    See  State  ?).  Sargent, 

Rochester  v.  Roberts,  9  Fost.  360 ;  32  Maine,  429. 

Osborne  v.  Scott,  13  Tex.  59  ;  Gro-  2  Per  Chapman,  J.,  Com.  v.  Hall, 

ton,  43  N.  H.  91;  Emerson  y.  Paine,  4  Allen,  306. 
9  Verm.  271 ;  .Ienkins«.  Brown,  21 

(a)  Nor,  in  Massachusetts,  to  the  decision  of  a  court  below  in  matters 
of  fact  submitted  to  it.  Whiton  v.  Nichols,  3  Allen,  583.  Unless  wrong 
in  point  of  law.  Kettell  v.  Foote,  ib.  212.  The  court  above  will  not 
generally  interfere  with  the  discretion  of  the  courts  below  in  mere  matters 
of  practice,  unless  legal  rights  of  parties  are  prejudiced  thereby.  Barnett 
V.  Thompson,  37  Geo.  335. 


390  THE   LAW    OF   NEW    TRIALS.  [CH.  XII. 

resting  merely  in  the  discretion  of  the  court,  whether 
with  reference  to  the  course  of  proceeding  at  the  trial,  or 
as  to  granting  a  new  trial,  nothing  is  open  upon  the  bill 
of  exceptions."'  So,  in  a  late  case  in  the  Supreme  Court 
of  the  United  States:  "The  mode  of  conducting  trials, 
the  order  of  introducing  evidence,  and  the  times  when  it 
is  to  be  introduced,  are,  proi)erly,  matters  belonging  to  the 
practice  of  the  Circuit  Court,  with  which  this  court  ought 
not  to  interfere.— Probably  the  practice  in  no  two  States 
of  the  Union  is  exactly  the  same ;  and,  therefore,  in  each 
State,  the  Circuit  Courts  must  necessarily  be  vested  with 
a  large  discretion. — We  do  not  feel  at  liberty,  therefore, 
to  interfere  with  the  exercise  of  this  discretion."^  So  it 
is  gaid — a  somewhat  fanciful  justification  of  discretionary 
authority — "  Because  a  motion  chances  to  be  made  while 
the  trial  is  proceeding,  and  before  the  same  judge,  it  does 
not  for  that  reason  make  a  part  of  the  trial. "^ 

§  3.  The  examples  which  illustrate  this  general  rule 
are  very  numerous,  and  of  course  quite  miscellaneous. 
Among  the  most  frequent  are  applications  for  contiimance^ 
and  amendment,{a)  the  granting  or  refusing  of  which  is 
not  in  general  a  ground  for  new  trial  or  bill  of  exceptions; 
although  either  may  be  contrary  to  positive  law,  and 
would  then  constitute  an  exception  to  the  rule.\6)     So 

•  Per  Dewoy,  J.,  Com.  v.  Dow-  <  McFadden  v.  Com.,  23  Penn. 

er,  4  Allen,  299.  13  ;  Clapp  v.  Balcli,  3  Greenl.  219  ; 

2  Philadelphia,  &c.  v.  Stimpson,  Collier  v.  State,  20  Ark.  30  ;  Wy- 
14  Pet.  448.  iiian  v.  Dorr,  3  Greenl.  183  ;  Key- 

3  Per  Allen,  J.,  Woodrutf  v.  nard  v.  Brecknell,  4  Pick.  302; 
Hurson,  32  Barb.  561.  Moor  v.  Shaw,  47  Maine,  88;  Pay- 


(a)  It  is  no  ground  for  a  new  trial,  that  the  court  refuses  to  allow  an 
amendment  after  the  testimony  and  arguments  were  closed,  if  such  re- 
fusal was  nuide  on  the  theory  that  tlie  amendment  was  immaterial,  and 
if  the  case  was  presented  to  the  jury  in  accordance  with  such  theory. 
Allison  V.  Barrett,  16  Iowa,  278. 

(6)  The  law  vests  in  the  judges  of  tlie  courts  below  great  discretion 
in  granting  or  refusing  continuances,  and  the  Supreme  Court  will  pre- 


CII.  XII.]  RULINGS.      DISCRETION.  391 

tlie  overruling  of  a  motion  for  postponement,  for  the  pur- 
pose of  procuring  a  record  of  conviction  to  disqualify  a 
witness;  or  for  the  absence  of  a  witness.^  Or  refusal  to 
order  a  specification.^  Or  a  refusal  to  allow  the  counsel 
for  the  defendant,  on  opening  his  case,  to  comment  on  the 
plaintiff's  evidence.^  Or,  as  is  sometimes  held,  a  refusal 
to  allow  counsel  to  open  and  close.,  unless  injustice  has  been 
done.^  Or  a  refusal  to  bring  forward,  as  a  continued 
action,  one  that  was  defaulted  at  the  first  term,  the  plain- 
tift*  not  knowing  that  the  defendant  was  out  of  the  State.' 
Or  a  ruling  upon  the  question  of  recommitment,  &c.,  of  a 
report  of  referees.^    So,  in  reference  to  the  Jw/'y,  directing 

son   V.   Macomber,    3    Allen,    69  ;  v.  Atkinson,  4  Humph.  470  ;  Smal- 

Gwynn  v.    Globe,  &c.,  5  ib.,  317;  ley,  «.  Anderson,  2  Monr.  56. 
Richmond,    &c.    v.    Woodruff,    8        '  Campbell  y.  Thompson,  4  Shep. 

Gray,  447;  Warren  v.  McHatteu,  117;  State  v.  Damery,  48  Maine, 

2   Scam.   32 ;    Lon<?  «.  Overton,  7  327. 

Mis.  567  ;  Probate  Court  v.  Hall,  14        2  Ward  v.  Fuller,  7  Gray,  179. 
Verm.  159  ;  Miller  y.  Schackleford,        »  Rich  «.  Jones,  9  Cush.  329. 
4  Dana,  264;  Helm  v.  Rodgers,  5        <  Marshall  v.  Wells,  7  Wis.  1. 
Humph.  105  ;  Davis  v.  Church,  1        ^  Whitney   v.  Thayer,    5   Pick. 

Watts  &  Serg.  240.  See  Hammond  528. 

v.  Kemer,  3  Hayw.  145  ;  Jarnagan        ^  Walker  v.  Sanborn,  8  Greenl. 

288. 

sume  that  that  discretion,  when  exercised,  is  exercised  legally  and  not 
arbitrarily.  Ryan  v.  Sewell,  18  La.  An.  221.  In  Texas,  a  judgment  will 
not  be  reversed  on  the  ground  of  refusal  to  grant  a  continuance,  unless 
the  point  was  reserved  by  bill  of  exceptions.  Harrison  v.  Cotton,  25 
Tex.  53.  A  motion  to  continue  or  postpone  on  account  of  the  absence 
of  counsel  is  addressed  to  the  discretion  of  the  court,  and  its  ruling  will 
not  be  interfered  with  unless  injury  or  injustice  have  plainly  resulted. 
Ayres  v.  Duprey,  27  Tex.  593;  People  v.  Sackett,  14  Mich.  320.  In 
Arkansas,  the  appellate  court  will  not  attempt  to  control  such  discretion, 
unless  it  has  been  grossly  abused.  Wilde  v.  Hart,  24  Ark.  599.  In  Mis- 
souri, when  the  court  below  has  soundly  exercised  its  discretion.  State 
V.  Shreve,  39  Mis.  90.  In  Indiana,  the  Supreme  Court  reversed  the  judg- 
ment of  the  court  below  for  an  abuse  of  its  discretion  in  denying  a  con- 
tinuance in  a  criminal  case,  for  the  absence  of  a  witness.  Wassels  v. 
State,  26  Ind.  30.  So  in  a  prosecution  for  felony,  where  the  motion  was 
supported  by  a  sufficient  affidavit.  Hurt  v.  State,  26  Ind.  106.  In  Illi- 
nois, where  a  statute  requires  the  party  to  "  satisfy  the  court"  by  affi- 
davits, in  order  to  procure  a  continuance,  the  judgment  cannot  usually 
be  inquired  into  by  an  appellate  court.     Farrell  v.  McKee,  36  111.  225. 


392  THE    LAW    OF    NEW    TRIALS.  [CIL  XII. 

which  jury  shall  try  a  case;  discharge  of  jurors  when  they 
cannot  agree,  though  they  have  heen  out  hut  a  short  time ; 
excusing  a  juror;  or  the  calling  of  a  juror  from  one 
jury  to  serve  on  another.^  So  dismissing  a  jury  partly 
impanelled,  and  postponing  the  trial,  when  the  prisoner 
refused  to  take  any  part  in  the  selection  of  the  twelfth 
juror.-(^^.) 

'  AVare  v.  Ware,  8  Greenl.  42;        ^  McFaddcn   v.  Com.,  23  Peun. 
Hauiiltons  v.  Moody,  21  Mis.  79  ;    12. 
People  V.  Green,  13  Wend.  55. 


(a)  Other  examples  of  discretion,  though  not  strictly  connected  with 
the  remedy  of  «ew  trials,  are  the  following  :  Allowance  of  a  certiorari. 
State  V.  French,  4  Zabr.  73G.     Awarding  immediate  execution,  notwith- 
standing the  allowance  of  a  writ  of  error;  unless  in  a  case  of  manifest 
injustice.     Allen  v.  Hopper,  4  Zabr.  514.     'Ilie  clerk's  giving  directions 
to  the  sheriff,  in  a  matter  entirely  within  the  discretion  of  the  sheriff. 
McEwin  V.  The  State,  3  Sm.  &  M.  120.     A  refusal  to  discharge  a  de- 
fendant, on  the  ground  of  his  having  been  arrested  while  attending  as  a 
party  or  witness.     Roberts  v.  Austin,  5  Whart.  313.     The  admission  or 
rejection  of  additional  pleas.     Evans  v.  St.  John,  9  Port.  186;  Hender- 
son V.  Hamer,  5  How.  Miss.  525.     A  motion  to  strike  out  a  plea.    Town- 
son  V.  Moore,  9  Port.  136.      Discretionary  taxing  of  costs.     Walton  v. 
AValton,  19  Mis.  667.    See  Apgar  v.  Hiler,  4  Zabr.  812.     An  application 
for  a  separate  trial  by  one  defendant  charged  with  a  misdemeanor.  Hibl)S 
V.  State,  24  Ind.  140.     Refusal  to  receive  additional  affidavits  on  the 
question  of  setting  aside  a  verdict,  after  the  decision  is  announced.  Scott 
V.  Moore,  41  Vt.  205.    A  motion,  after  a  plaintifi"  has  put  in  his  evidence, 
for  a  ruling,  that,  "  assuming  that  all  the  facts  offered  to  be  proved  by 
the  plaintiff  were  actually  and  fully  proved,  the  plaintiff  was  not  entitled 
to  recover,  and  that  the  case  should  be  withdrawn  from  the  jury  and  a 
verdict  rendered  for  the  defendant."     Bradley  v.  Poole,  98  Mass.  169. 
A  motion  before  judgment  to  set  aside  a  verdict  as  against  law  and  con- 
trary to  public  policy,  and  asking  the  court  to  rule  so  on  inspection  of 
the  declaration.   McAllister  v.  Burrill,  98  Mass.  334.     Submitting  to  the 
jury  the  question  whether  a  statement  in  writing  is  a  mere  offer  of  com- 
promise or  an  admission  of  facts.  Field  o.  Tenuey,  47  N.  H.  513.  Where 
the  evidence  has  been  closed,  and  the  parties  have  agreed  to  take  a  ver- 
dict subject  to  the  opinion  of  the  court,  the  (piestion  whether  the  case 
shall  be  opened  to  admit  further  evidence.     Wells  v.  Burbauk,  17  N.  II. 
393. 


CH.  XII.]  RULINGS.      DISCRETION.  393 

§  4.  Error  does  not  lie,  for  the  overruling  of  a  motion 
to  nonsuit  the  plaintiff,  when  the  verdict  in  his  favor  is 
for  a  less  sum  than  the  court  can  take  cognizance  of,  on 
the  ground  that  his  affidavit  does  not  comply  with  the 
requisitions  of  the  statute.^  So  no  exception  lies,  for 
refusal  to  dismiss  an  action  for  a  defect  in  the  declaration.^ 
So  (in  Massachusetts)  where  the  declaration  contained 
counts  in  contract  and  tort  for  the  same  cause  of  action, 
and,  after  the  evidence  had  been  all  introduced,  the  de- 
fendant moved,  that  the  plaintiff"  should  be  required  to 
elect  his  count,  and  the  other  be  stricken  out ;  but  the 
motion  was  overruled:  held  no  ground  of  exception.^  So 
it  is  no  ground  of  exception,  that,  where  the  identity  of 
a  horse  was  in  question,  the  witness  and  jury  were  allowed 
to  inspect  the  horse  in  the  court-yard.''  So  no  exception 
lies,  for  refusal  to  recommit  an  auditor's  report.^  So,  in 
Massachusetts,  under  Rev.  Sts.,  c.  116,  §  32,  the  compensa- 
tion to  be  awarded  to  the  presiding  officer  and  sheriff'  at 
a  trial,  before  a  sheriff"s  jury,  of  a  complaint  for  flowing 
lands,  is  within  the  discretion  of  the  court  below,  and 
cannot  be  revised  by  the  Supreme  Court  upon  exceptions.^ 

§  5.  The  order  in  which  questions  shall  be  put  or  evi- 
dence introduced  is  in  general  discretionary  with  the 
court. ^(«)     Thus,  in  an  action  against  a  ferryman,  it  was 

>  McAllister  v.  McDow,  3G  Ala.  N.  H.  121  ;   Plank,  &c.  v.  Bruce, 

453.  6    Md.    457 ;    Warner    v.    Hardy, 

2  Salem,  &c.  v.  Hayes,  5  Ciish.  ib.  525  ;  Williams  v.  Dewitt,  13 
458.  Ind.  ?)09  ;  Nordyke  v.  Shearon.  ib. 

3  Carlton  v.  Pierce,  1  Allen,  36.  349  ;  Moore  v.  Lea,  33  Ala.  375  ; 
*  Nutters.  Ricketts,  6  Clarke,  93.  Doyle  v.  Estornet,  13  La.  An.  318  ; 
5  Kendall  v.  Weaver,  1   Allen,     Gordon  v.  Searing,  8  Cal.  49.    But 

277.  see  Williams  v.  Averitt,  3  Hawks, 

^  Richardson  v.  Curtis,  2  Gray,  308 ;  Rice  v.  Cunningham,  29  Cal. 

497.  493  ;  Gordon  v.  Millandon.  16  La. 

7  Per  Dewey,  J.,  Smith  v.  Mer-  An.  347;  Powell  v.  Hannibal,  35 

rill,  9  Gray,  147 ;  White  v.  Wallen,  Mis.  457. 

17  Geo.  106;  Kent  v.  Tyson,  20 

(o)  Though  the  plaintiff  thereby  anticipate  and  defeat  the  defendant's 
case.     Carey  v.  Bright,  58  Penn.  70.     The  right,  given  by  (Iowa)  Rev. 


394  THE    LAW    OF   NEW    TRIALS.  [ciI.  XII. 

held  no  error,  to  allow  the  plaintiff  to  introduce  the  ferry 
license  after  motion  of  nonsuit.'  So  where  evidence  is 
offered  of  conversations  between  the  defendant  and  a 
third  person,  wholly  irrelevant  unless  communicated  to 
the  plaintiff;  it  is  discretionary  with  the  judge  to  require 
the  plaintiff  to  first  prove  such  communication,  or  to  per- 
mit the  evidence  of  such  conversations  to  be  given  in  the 
first  instance.2  So  a  new  trial  was  refused,  where  the 
defendant,  proposing  to  read  a  letter  to  himself  from  the 
plaintiff,  and  one  to  the  plaintiff  in  reply,  was  required 
first  to  read  the  latter.^  So  where  the  court  allows  a 
party,  after  having  closed  his  principal  evidence,  to  intro- 
duce at  a  later  stage  of  the  trial,  and  in  connection  with 
rebutting  evidence,  evidence  which  pertains  to  his  prin- 
cipal case."*  So,  where  part  of  a  defence  was  the  pendency 
of  another  action  for  the  same  cause,  which  was  disputed ; 
the  judge,  on  the  plaintiff's  suggestion,  though  ol)jection 
was  made,  ordered  that  this  issue  should  be  first  tried, 
thus  compelling  the  defendant  to  enter  upon  his  defence 
before  the  plaintiff  had  gone  through  with  his  case.  Held, 
this  was  a  matter  of  discretion,  for  which  a  new  trial  could 
not  be  had.'*  So,  on  the  other  hand,  it  is  not  error,  to  refuse 
to  allow  a  party  to  read  a  part  of  a  deposition  at  one  stage 

1  May  7).  Hanson,  5  Cal.  300.  »  Mudscw.  Picrco,  .32  Maine,  105. 

2  Downina;  v.  De  Klyu,  1  E.  D.         ^  State  v.  Allbrd,  ;]1  Conn.  40. 
Smith   5G3  ^  Bedell  v.  Powell,  13  Barb.  184. 


§  3070,  to  receive  evidence  "to  correct  an  evident  oversight  or  mistalie," 
does  not  deny  the  power  of  the  court  to  receive  evidence  out  of  the  usual 
order,  where  there  is  no  surprise  and  justice  is  thereby  promoted.  Huey 
V.  Huey,  20  Iowa,  525.  If  a  question  is  irrelevant,  and  the  counsel  says 
he  expects  to  connect  it  with  the  case,  it  is  a  matter  within  the  discretion 
of  the  court  to  admit  the  question  or  not.  State  v.  Cherry,  63  N.  C.  493. 
Generally,  the  court  will  not  control  the  order  of  proofs.  But  where 
there  is  a  fact  essential  as  a  basis  for  other  evidence,  it  is  within  the  dis- 
cretion of  the  court  to  refuse  the  introduction  of  such  other  evidence, 
until  evidence  of  that  fact  shall  have  been  produced.  Johnson  v.  Brown, 
25  Tex.  (Hupp.)  120. 


CH.  XII.]  RULINGS.      DISCRETION.  395 

of  the  cause,  and  a  part  at  another.'  But  a  new  trial  was 
granted  for  the  exclusion  of  evidence  to  prove  part  of  the 
case,  because  the  plaintiff  did  not  first  show  that  he  would 
be  able  to  prove  the  whole  case.^(«) 

§  6.  1^0  exception  lies  for  the  admission  of  evidence  in 

reply,  which  should  be  regularly  ofi'ered  in  chief.^     As  in 

case  of  the  admission  of  evidence  in  chief  for  the  com- 

> 

monwealth  after  that  for  the  defendant.*  But,  on  the 
other  hand,  generally,  if  the  plaintiff  offers  evidence  in 
the  first  instance  to  meet  the  answer;  he  cannot  otter  fur- 
ther evidence  on  the  same  point,  after  the  defendant  has 
introduced  his  testimony,'  except,  as  is  sometimes  held, 
by  way  of  discretion.^  Hence  no  exception  lies,  for  the 
rejection  of  evidence  in  reply  to  rebutting  evidence  for 
the  plaintiff,  unless  such  evidence  tends  to  control  the 
plaintiff's  rebutting  testimony.^  So,  in  an  action  of 
assault  and  battery,  the  plaintifi'  rested  on  the  evidence 
of  witnesses,  who  testified  to  the  blow.  The  defendant 
then  called  witnesses  to  disprove  the  striking.  The  plain- 
tiff" then  offered  a  witness  to  prove  an  admission  of  the 
defendant  of  the  striking.  The  court  refused  to  hear  the 
witness,  and  it  was  held  no  error.^     So  where  the  plaintiff* 

'  Young  V.  Smith,  25  Mis.  341.  *  Com.    v.  Concannon,  5  Allen, 

2  Pegg  V.  Warford,  7  Md.  583.  502  ;  Com.  v.  Arrance,  ib.  517. 

3  Finlay   v.   Stewart,    56  Penn.         ^  York  v.  Pease,  2  Gray,  282  ; 
183  ;  Day  v.  Moore,  13  Gray,  522  ;  Kohler  v.  Wells,  26  Cal.  606. 
Towns  V.  Riddle,  2  Ala.  694 ;  Had-        ^  Union  v.  Crary,  25  Cal.  504. 
den  V.  Johnson,  7  Ind.  394;  Robin-        ^  Briggs  v.  Humphrey,  5  Allen, 
son  V.  Fitchburg,  &c.,  7  Gray,  92  ;        ^  Silverman  v.  Foreman,  3  E.  D. 
Martin  v.  McGuire,  ib.  177;  Mat-  Smith,  322. 

tocks    V.    Stearns,    9   Verm.    326 ; 
Bryan  v.  Walton,  20  Geo.  480. 

(a)  In  an  action  for  seizure  and  conversion  of  goods,  after  the  plaintiff 
had  called  all  his  witnesses  in  chief,  who  had  proved  and  referred  to  cer- 
tain bills  of  sale  which  had  been  put  in  evidence  but  not  read,  the  plain- 
tiff proceeded  to  read  them  to  the  jury,  to  which  the  defendants  excepted, 
on  the  ground  that  it  was  too  late.  Held,  that  it  was  not  error  to  permit 
the  bills  of  sale  to  be  read.     Carlyon  v.  Lannan,  4  Nev.  156. 


396  THE   LAW    OF   NEW    TRIALS.  [CIl,  XII. 

read  the  direct  answers  in  a  deposition  at  the  proper  time, 
and,  after  the  detendant  had  closed  his  case,  asked,  but  was 
not  allowed,  to  read  the  cross-answers;  held,  there  was  no 
error.'(a) 

§  7.  It  is  no  ground  of  exception  to  the  admission,  after 
the  defendant's  testimony,  of  evidence  for  the  plaintiff, 
which  tends  to  contradict  the  defendant's  witness  in  a 
material  point,  that  it  also  tends  to  corroborate  the  case 
made  hy  the  plaintiff's  evidence  in  cliief.^ 

§  8.  Where  the  defendant  offered  evidence,  wdiich  was 
excluded;  the  plaintiff  then  offered  evidence  upon  the 
same  point,  and  the  court  gave  leave  to  the  defendant  to 
introduce  his  evidence,  but  he  declined:  held,  no  ground 
of  exception.^ 


31S 


'  Wood  V.  Gibbs,  35  Miss.  559.  »  Tisdale  v.  Mitchell,  12  Tex.  68. 

2  Cliadbouni  v.  Fraiikliu,  5  Gray, 


(a)  Testinioriy  is  not  rebutting  unless  it  has  reference  to  some  new 
question  raised  by  the  evidence  of  the  opposite  party.  Boies  v.  Ilenney, 
32  111.  130.  Testimony  in  chief,  tending  merely  to  support  the  credit  of 
a  witness,  is  not  to  be  heard  except  in  reply  to  evidence  by  the  opposite 
party  to  impeach  it.  United  States  v.  Holmes,  1  Cliff.  98.  A  party, 
being  a  witness,  may  testify  to  his  intention  in  performing  an  act,  to  rebut 
evidence  that  such  intention  was  fraudulent.  Graves  v.  Graves,  45  N. 
II.  323.  On  the  trial  of  an  issue,  ordered  according  to  statute,  in  a  suit 
to  contest  a  will,  the  defendants,  who  had  the  affirmative,  offered  the  will, 
with  the  probate.  The  contestants  having  concluded  their  testimony, 
the  defendants  were  properly  allowed  to  introduce  general  evidence  sus- 
taining the  will.  Runyan  v.  Price,  15  Ohio  St.  1.  If,  pending  the  argu- 
ment, a  dispute  arises,  whether  a  paper  has  been  put  in  evidence,  and  the 
court  decides  that  it  has,  and  thereby  the  counsel  for  either  party  is  taken 
by  surprise;  he  should  immediately  request  leave  to  introduce  any  new 
or  rebutting  testimony.  Schellhous  v.  Ball,  29  Cal.  G05.  In  Vermont, 
after  the  plaintifif  has  introduced  rebutting  evidence,  no  further  testi- 
mony can  be  introduced  by  the  defendant,  upon  a  point  to  which  he  has 
already  had  full  opportunity  to  reply.     Thayer  v.  Davis,  38  Vt.  103. 


CH.  XII.]  RULINGS.      DISCRETION.  397 

§  9.  The  court  may  in  its  discretion,  after  a  case  is 
closed,  so  far  as  relates  to  the  evidence,  order  it  to  l)e 
opened,  and  further  evidence  to  be  received.'  jSTor  is  such 
action  any  ground  for  reversal,  unless  it  appears  that 
injustice  has  been  done  by  an  abuse  of  discretion. ^  "Ob- 
jections to  the  introduction  of  testimony,  depending  upon 
the  time  at  which  it  was  admitted,  are  not  a  subject  of 
exceptions."^  Thus  where  evidence  is  introduced  after 
the  close  of  the  argument,  but  causes  no  surprise  to  the 
opposing  counsel,  and  has  no  effect  on  the  verdict,  it  is  not 
error.*  Or  to  allow  the  prosecution,  in  a  criminal  case,  to 
recall  witnesses  and  give  additional  testimony,  after  the 
'evidence  is  closed  on  both  sides,  and  the  instructions  are 
agreed  on  by  the  court.*  (See  §  12.)  More  especially  the 
opening  of  a  case  for  further  testimony,  after  the  parties 
have  rested,  is  in  the  discretion  of  the  justice,  while  the 
parties,  with  their  witnesses,  are  all  present.^  Thus  a  new 
trial  was  refused,  where,  after  commencement  of  the  plain- 
tiif's  closing  argument,  the  defendant  was  allowed  to  offer 
evidence  explanatory  of  entries  in  the  defendant's  books, 
then  pointed  out  for  the  first  time.^  So,  after  the  evidence 
has  been  closed,  it  is  within  the  discretion  of  the  court,  to 
allow  the  introduction  of  any  proper  evidence,  to  show 
that  a  deed  relied  on  by  the  other  side  is  a  forgery.^  Or 
to  permit  the  plaintiif,  after  his  case  was  closed  and  an 
instruction  moved  on  it,  to  show  the  character  of  the 
notice  he  had  given  indorsers.^  Or  to  permit  additional 
evidence  to  go  to  the  jury,  to  prove  the  venii^e  as  laid,  after 
the  argument  has  been  closed  and  the  jury  instructed.^" 


'  Burner  v.  White,  2  Bosw.  92.  ^  Mathis  v.  Colbert,  24  Geo.  384. 

2  Prie'st  V.  Union,  &c.,  6  Cal.  170.  s  State  v.  Porter,  20  Mis.  201. 

3  Per  Dewey.  J.,  Smith  v.  Mer-  s  Harpell    v.    Curtis,    1    E.    D. 
rill,  9  Gray,  147  ;  Coates  v.  Grego-  Smitli,  78. 

ry,  10  Ind.  345  -,  ]\Iowry  v.   Star-  '  Smith  v.  Merrill,  9  Grav,  147. 

buck.  4  Cal.  274  ;  1  E.  D.  Smith,  s  Wells  v.  Walker,  29  Geo.  450. 

78;  Barker  I).  State,  5  Flori.  199;  »  .Tolmston  o.  Mason.  27  Mis.  all. 

Hooker  v.  Johnson,  6  ib.  730.  '"  Dave  v.  The  State,  22  Ala.  23. 


398  THE    LAW    OF    NEW    TRIALS.  [CIL  XII. 

Nor  is  it  material  that  no  reason  is  assigned  for  changing 
the  reguhir  order  of  evidence.'(a) 

§  10.  But,  on  the  other  hand,  it  is  not  error  to  refuse  a 
motion  to  recall  a  witness  after  the  case  was  announced  to 
be  closed;  as,  for  instance,  to  inquire  in  regard  to  a  state- 
ment made  by  him  in  presence  of  the  })laintitf's  intestate, 
which  was  not  contradicted  by  the  intestate,  nor  his  atten- 
tion particularly  called  to  it.^  Nor  a  refusal  to  allow  the 
party  holding  the  aflirmative  to  give  new  evidence,  not  in 
answer  to  new  matter  introduced  on  the  other  side,  after 
his  case  is  closed.^  Nor  the  refusal  to  call  a  witness  to 
restate  his  testimony,  after  a  cause  has  been  summed  up 
and  the  jury  charged.^  Nor  the  refusal  to  allow  counsel, 
after  the  argument  has  been  closed  and  the  cause  sub- 
mitted to  the  jury,  to  explain  a  distinction  applicable  to 
the  case.^  So  no  exception  lies  for  rejection  of  a  plan, 
ottered  after  the  closing  of  the  testimony."     So,  in  a  capi- 

'  Kay  V.  Smith,  9  Gray,  141.    See  5C0;  Witherspoon  v.  Cain,  Walker, 

Detroit  V.  Van  Steinburg,  17  Mich.  407. 

99.  5  Chamberlain  v.  Masterson,  26 

2  Beale  v.  Hall,  22  Geo.  431.  Ala.  371 ;  Ricketts  v.  Pendleton,  14 

3  Graham  v.  Davis,  4  Ohio  (N.  Md.  330  ;  Sauford,  &c.  v.  Wiggin, 
S.)  363.  14  N.  H.  441. 

*  ThePeopleo.  Rector,  19  Wend.        ^  Bacon  v.  Williams,  13  Gray, 

525. 

(a)  In  England,  it  is  in  the  discretion  of  the  court  to  allow  a  plain- 
tiff to  offer  evidence  in  answer  to  the  case  set  up  by  the  defendant. 
Shrubsole  v.  Sussams,  16  C.  B.  (N.  S.)  452.  It  lies  in  the  discretion  of 
the  court,  to  admit  or  overrule  evidence  offered  in  rebuttal,  which  might 
have  been  given  in  chief.  Gaines  v.  Com.  50  Penn.  319.  Or  to  admit 
rebutting  testimony,  after  the  prayers  have  been  admitted  on  both  sides 
and  the  argument  thereon  nearly  concluded,  when  the  witnesses  have 
been  retained  for  the  purpose,  and  the  other  side  notified  of  the  fact  and 
nature  of  the  proof,  and  when  there  is  a  rule  of  court  investing  it  with 
that  discretion.  Dailcy  v.  Grimes,  27  ISId.  440.  Or  to  allow  a  party  to 
introduce  further  evidence,  even  after  the  argument  has  been  concluded. 
Watt  V.  Alvord,  25  Ind.  533.  Or  rule  out  evidence  which  has  been  ad- 
mitted, even  after  the  closing  arguments  and  the  charge.  Judge  v.  Stone, 
44  N.  H.  593. 


CH.  XII.]  RULINGS.      DISCRETION.  o99 

tal  trial,  after  the  closing  argument  for  the  commonwealth 
was  commenced,  the  defendant  proposed  to  introduce  ad- 
ditional evidence  which  had  then  first  come  to  lier  know- 
ledge, but  the  evidence  was  not  admitted.  Held,  the 
motion  was  addressed  to  the  discretion  of  the  court,  and 
exceptions  did  not  lie.^  So,  in  an  action  against  a  com- 
mon carrier,  the  plaintiif  having  closed  his  case,  and  the 
defendant's  counsel  commenced  his  argument,  the  judge 
stopped  him,  by  stating  his  opinion  in  favor  of  tlie  de- 
fendant, and  also  what  was  the  principal  question  to  be 
decided.  The  plaintiff  then  offered  to  prove,  under  the 
common  counts,  a  receipt  of  money  by  the  defendant,  but 
the  evidence  was  excluded.  Held,  no  ground  of  new  trial.^ 
So  a  new  trial  was  refused,  where,  after  the  evidence  on 
both  sides  was  closed,  and  the  counsel  for  the  defendant 
had  said  there  was  no  further  testimony,  and  proceeded  in 
the  summing  up;  a  witness  appeared  in  court,  and  was 
ofl:ered  by  him,  but  rejected;  the  plaintiff  saying  that  his 
witnesses  had  left.^ 

§  10a.  Permitting  counsel  to  ask  his  own  witness  a 
leading  question  is  no  ground  of  new  trial."*  More  espe- 
cially, unless  objected  to,  so  as  to  give  opportunity  for 
changing  the  form.^  It  is  remarked  in  a  late  case:  "We 
are  not  aware  of  any  case  in  which  a  new  trial  has  ever 
been  granted  for  the  reason  that  leading  questions,  though 
objected  to,  have  been  allowed  to  be  put  to  a  witness."^ 
So  a  new  trial  cannot  be  had,  for  the  admitting  of  an 
answer  to  a  leading  question  in  a  deposition.^(a) 

'  Com.  V.  Doneer,  4  Allen,  299.  Maine,  137;  Hopkinson  v.  Steel,  12 

2  Edwards  v.  Sherratt,  1  E.  G04.  Verm.  583. 

3  Alexander  v.  Byron,  2  John.  ^  Kemmerer  v.  Edelman,  23 
Cas.  318.  Penn.  143. 

*  Mershon  v.  Haversack,  &c.,  2  6  PerMetcalf,  J.,  Green «. Gould, 
N.  J.  372 ;    Parsons  v.  Huff,   38    3  Allen,  406. 

^  Bliss  V.  Shuman,  47  Maine,  248. 

(a)  Nor,  on  the  other  hand,  for  expunging  irrelevant  interrogatories 
to  a  party.    Elliott  v.  Lyman,  3  Allen,  110.    So  when  the  aiswor  of  a 


400  THE    LAW    OF    NEW    TRIALS,  [CII.  XII. 

§  10/j.  A  new  trial  was  denied,  where  a  continuance 
had  been  refused  for  the  absence  of  a  witness,  upon  the 
admission  of  what  ho  would  testify;  such  admission  not 
boino;  read  to  the  jury.^  But  where  a  continuance  was 
moved  for  on  the  ground  that  a  witness  was  absent,  and 
refused  because  the  party  could  jirove  the  same  facts  by  a 
witness  who  was  present,  and  the  court  charged  the  jury 
that  the  party  needed  two  witnesses  to  prove  his  case;  a 
new  trial  was  granted.^ 

§  11.  It  is  no  ground  of  exception,  that,  at  the  time  of 
swearing  his  witnesses,  and  before  they  were  examined, 
the  defendant  moved  the  court  to  remove  such  of  the  plain- 
titi"'s  witnesses  out  of  hearing  as  the  latter  held  in  reserve, 
which  motion  was  overruled.^(a)  Or  that  witnesses  were 
ordered  to  leave  the  court  while  others  testified,  and, 
although  they  did  not,  were  still  allowed  to  testify.^  Xor 
that  the  court  rebukes  a  witness  for  unbecoming  levity.' 
Nor  docs  an  exception  lie,  to  a  ruling  u})on  the  question, 
whether  a  deposition  read  shall  go  to  the  jury.^  Or  to  the 
admission  in  evidence  of  a  second  deposition  of  the  same 
witness,  taken  without  a  previous  order.^  So,  after  the 
plaintiff  liad  put  in  his  case,  the  defendant  read  a  deposi- 
tion, and  afterwards  proposed  to  produce  the  deponent  on 
the  stand,  for  the  purpose  of  rel)utting  some  part  of  the 
plaintiff's  evidence.     The  plaintiff  objected,  unless  the 

'  Pannell  v.  State,  29  Geo.  681.  <  Com.  v.  Hall,  4  Allen,  306. 

2  Young  V.  Gibson,  3  Tex.  417.  «  Thomas  ».  State,  27  Geo.  287. 

'  Sanders  v.  Johnson,  6  Blackf.  ^  Whiiliead  c.Keves,  8  Allen,49o. 

50.  ^  Herljcrti'.Uaufick,  16Ala.581. 

witness  is  not  responsive  to  the  question  asked,  or  is  a  voluntary  state- 
ment made  by  him.  the  court  may  order  it  to  be  stricken  out.  Koquest 
V.  Boutin,  14  La.  An.  44.  In  Xew  ilampshire,  if  the  court  allow  lead- 
ing questions,  it  will  be  presumed,  on  a  motion  to  set  aside  the  verdict, 
that  the  discretion  was  properly  exercised,  unless  the  case  states  enough 
to  show  the  contrary.     Kendall  v.  Brownson,  47  N.  H.  186. 

(a)  It  is  error,  under  an  order  for  the  separation  of  witnesses,  to  ex- 
clude a  party  from  the  court-room.     Larue  v.  Russell,  2G  Ind.  38G. 


en.  XII.]  RULINGS.      DISCRETION.  401 

deposition  should  be  first  withdrawn.  The  ruling  out  of 
the  testimony  was  held  to  be  a  proper  exercise  of  the 
sound  discretion  of  the  court.^  So,  a  jury  returning  to 
inquire  as  to  the  testimony  of  a  witness,  the  witness  was 
produced,  and  asked  what  he  had  testified,  to  which  he 
replied  as  nearly  as  he  could  remember.  Tlie  counsel 
were  not  permitted  to  examine  the  witness,  and,  it  being 
doubted  what  his  testimony  was,  the  judge  read  it  from 
his  minutes,  and  again  refused  a  re-examination.  Held, 
no  ground  of  exception.^ 

§  12.  Although,  in  general,  there  is  no  right  to  recall  a 
witness,^  yet  this  is  a  matter  in  the  discretion  of  the  court. ^ 
Thus  the  court  may  permit  a  witness  for  the  plaintiff  to 
be  recalled,  after  the  defendant  has  closed  his  case.^  Or 
permit  a  witness  to  be  recalled  after  the  arguments  have 
commenced,  where  a  question  has  arisen  as  to  his  testi- 
mony.^   (See  §  9.) 

§  13.  But  a  new  trial  will  not  be  granted,  for  refusal  to 
have  a  cross-examination  resumed,  after  the  examination 
was  closed.^  Nor  for  refusal  to  permit  re-examination  of 
a  witness.^  "  In  regard  to  the  re-examination  of  witnesses 
after  they  have  left  the  stand,  it  was  purely  discretionary 
with  the  referees ;  and  the  exercise  of  that  discretion  can 
only  be  reviewed  here,  if  at  all,  when  it  plainly  appears 
that  it  was  abused,  to  the  defendant's  prejudice."^  So  a 
refusal  to  order,  that  a  party  who  has  been  fully  exa- 
mined and  cross-examined  as  a  witness,  and  has  left  the 
court-room  without  notice  to  the  adverse  party,  should 
either  return  to  be  further  examined,  or  have  his  testi- 

'  Hopkins  v.  Clark,  30  Tex.  64.  «  INIanly  v.  Culver,  20  Tex.  143. 

*  Herring  v.  State,  1  Clarke,  205.        ^  Van  Cort  v.  Van  Cort,  4  Edw. 
3  State  V.  Ruhl,  8  Clarke,  447.         Ch.  621. 

*  Dunckle  v.  Cocker,  11  Barb.  *  Barton  v.  Morpliis,  4  Dev.  240. 
387.  See  Meakin  v.  Anderson,  11  ^  Per  Woodruff,  J.,  Sheldon  v. 
Barb.  215.  Wood,  2  Bosw.  285. 

^  Fairchild  v.  California,  &c.,  13 
Cal.  599. 

26 


402  THE    LAW    OF    NEW    TRIALS.  [CIL  XII. 

mony  stricken  out ;  is  no  ground  of  exception.^  So  the 
application  of  a  witness  to  explain  his  testimony  is  ad- 
dressed to  the  discretion  of  the  court.^  So  no  exception 
lies  to  any  ruling  as  to  the  re-examination  of  a  witness 
on  matters  not  testified  of  in  cross-examination.'  And, 
if  a  witness  is  recalled  merely  to  reaffirm  his  former  state- 
ments, the  court  may  refuse  to  allow  his  recall.*  So  no 
exception  lies,  where  the  direct  and  cross-examination  of 
a  witness  has  been  several  times  taken  up  and  dropped, 
and  further  cross-examination  is  stopped  by  the  court.X«) 

§  14.  On  motion,  the  cross-examination  of  tlie  party  in 
the  cause  may  be  deferred,  until  all  the  witnesses  upon 
the  particular  pleading  have  been  dismissed."  And  no 
exception  lies,  for  stopping  cross-examination  upon  imma- 
terial matters.^  {b) 

§  15.  Though  the  order  in  which  witnesses  are  to  be 
examined,  and  the  number  which  may  be  called  to  the 
same  point,  are  in  general  matters  of  discretion  and  not 

•  Ward  «.  Fuller,  7  Gray,  179.  ^  Com.«.Nickerson,  5  Allen,  518. 
2  Lindsay  v.  Wayland,  17  Ark.        ^  Tarlby  «.  Parlby,  9  Eng.  L.  and 

385.  Eq.  573. 

^  Kendall  v.  Weaver,  1  Allen,  '  llutchinson  v.  Methuen,  1  Al- 
277.  len,  33. 

*  Atchison  ■».  Steamboat,  &c.,  14 
Mis.  63. 

(a)  If,  after  the  evidence  is  closed  on  both  sides,  leave  is  granted  to 
the  defendant  to  recall  a  witness  to  make  an  explanation  of  some  point  in 
his  testimony ;  it  is  a  matter  within  the  discretion  of  the  court  to  pre- 
scribe the  terms  and  limit  the  examination.     State  v.  Harris,  G3  N.  C.  1. 

(&)  AVhere  a  controversy  arose  in  the  course  of  a  trial  as  to  the  terms 
of  a  contract,  wluch  the  plaintiff  alleged  and  the  defendant  denied  to 
have  been  in  writing;  and  one  of  the  defendant's  witnesses,  in  testifying 
to  its  terms,  stated  tliat  it  was  not  in  writing :  held,  the  plaintiff  could 
not,  as  of  right,  thereupon  interrupt,  to  cross-examine  the  witness,  and 
to  adduce  other  evidence  on  this  point,  before  this  witness  was  allowed 
to  close  his  testimony.  It  was  a  question  of  discretion.  Jenuess  v. 
Berry,  17  N.  H.  549. ' 


CII.  XII.]  RULINGS.      DISCRETION.  403 

a  subject  for  exceptions ;'(«)  yet  the  distinction  has  been 
taken,  in  New  York,  that,  while  a  circuit  judge  may  in 
his  discretion  limit  the  number  of  witnesses  to  be  ex- 
amined on  a  collateral  issue  as  to  the  character  of  the 
plaintiff",  or  that  of  either  of  the  witnesses  in  the  cause, 
and  at  any  stage  of  the  examination ;  and  the  exercise  of 
such  jurisdiction  cannot  be  reviewed  by  bill  of  exceptions: 
the  remedy,  where  it  works  injustice,  is  by  a  motion  for 
a  new  trial.^  And  the  general  rule  on  the  subject  of  dis- 
cretion will  not  be  enforced  to  the  sacrifice  of  manifest 
justice.  It  is  said:  "Though  this  court  should  not,  upon 
slight  grounds,  interfere  to  control  the  discretion,  in  mat- 
ters of  mere  practice,  to  be  exercised  in  the  inferior  courts 
in  the  control  of  suitors,  the  preparation  of  causes  for 
trial,  the  order  of  trial,  that  discretion  should  not  be  exer- 
cised in  violation  of  law,  or  in  such  manner  as  to  endanger 
materially  the  rights  of  litigants,  or  to  defeat  the  ends  of 
justice."  Thus,  in  an  action  for  breach  of  promise  of 
marriage,  about  three  weeks  before  the  trial,  the  defendant 
was  informed  by  his  counsel,  that,  in  consequence  of  the 
crowded  state  of  the  docket,  the  case  could  not  be  reached. 
The  defendant  accordingly  left  the  State  on  business. 
By  an  irregular  call  of  the  docket,  prior  causes  being  un- 
expectedly disposed  of,  this  case  was  reached,  and  a  ver- 
dict found  against  the  defendant.  Held,  a  new  trial  should 
be  granted. 3  So  it  is  held  that  a  new  trial  will  not  be 
granted  in  a  criminal  case,  for  the  reason  that  a  continu- 
ance was  denied,  unless  there  is  cause  to  apj^rehend  that 
there  was  an  abuse  of  the  discretion  of  the  court  below, 
which  worked  a  wrong  to  the  respondent.^ 

'  Gushing  v.  Billings,  2    Ciish.  89.  See  Wadswortli  v.  Thompson, 

158.  18  Geo.  709. 

2  Nolton  -y.  Moses,  3  Barb.  31.  ■>  Eppes  «.  The   State,  10   Tex. 

*  Donallen  v.  Lennox,  6  Dana,  474. 

(a)  The  courts  may  limit  the  number  of  witnesses  to  be  examined,  and 
the  number  of  depositions  to  be  read,  to  prove  a  particular  fact.  Gray 
V.  St.  John,  35  111.  222. 


404  TUE   LAW    OF   NEW    TRIALS.  [CH.  XII. 

§  16.  For  a  refusal  to  continue  certain  criminal  cases 
till  the  existing  excitement  had  subsided,  a  new  trial  was 
ordered  by  the  court  above. ^  And,  in  another  case,  in 
which  a  party  charged  with  assault  with  intent  to  murder 
moved  for  a  continuance,  on  the  grounds  that  he  was  pre- 
vented by  imprisonment  from  preparing  for  trial,  and  that 
there  was  a  great  excitement  against  him;  the  court  re- 
mark: "This  court  has  said,  that  it  would  not  interfere 
with  the  discretion  of  the  court  below,  in  regard  to  con- 
tinuances, except  in  cases  of  manifest  injustice,  or  where 
there  had  been  a  flagrant  abuse  of  such  discretion.  This 
record,  in  our  judgment,  presents  such  a  case."^ 

§  17.  So  although  it  is  held  to  be  no  ground  of  excep- 
tion, that  a  judge  has  wrongly  ruled  at  nisi  jJrius  as  to 
which  party  must  begin,  unless  such  ruling  did  clear  and 
manifest  injustice  ;3  or  a  failure  of  the  court  below,  in  a 
case  where  special  matter  is  pleaded,  to  allow  the  de- 
fendant's counsel  to  open  and  close,  the  verdict  against 
him  not  appearing  contrary  to  evidence  ;^  and  especially 
where  it  does  not  appear  that  the  ruling  was  not  accord- 
ing to  the  rules  of  practice  of  the  court  where  the  trial 
was  had:^  yet  the  better  rule  would  seem  to  be,  that  a 
new  trial  will  be  granted  for  refusal  of  the  right  to  begin, 
unless  it  be  clearly  shown  that  no  injury  resulted.  As 
where,  in  a  suit  upon  a  note,  the  defendant  admitted  the 
execution,  and  set  up  usury."  So  it  is  error,  not  to  permit 
the  defendant's  counsel  to  open  and  conclude  a  cause  before 
a  jury,  on  the  trial  of  issues  taken  on  the  pleas  of  pay- 
ment and  set-ofl:7  So,  although  the  allowance  of  an 
amendment  is  discretionary  with  the  court,  it  is  error,  to 

1  Bishop??.  The  State,  9  Geo.  121.        ^  Day  v.  Woodsworth,  13  How. 

2  Per  Warner,  J.,  Howell  v.  The     U.  S.  3G3. 

State,  .")  Geo.  48.  **  Iluutiiiixtou  ?).Conkey,  33 Barb. 

»  Branford  v.  Freeman,  1   Eng.  21  ;  Ayrault   v.  Chamberlain,    ib. 

L.  andEq.  444.  229. 

*  Steptoe  V.  Harvey,  7   Leigh,  ^  Churchill   v.  Rogers,   Hardiu, 

501.  182. 


CII.  XII.]  RULINGS.      DISCRETION.  405 

refuse  to  exercise  that  discretion  in  a  proper  case,  which 
will  furnish  ground  for  a  new  trial. ^  So,  after  the  de- 
fendant's counsel  had  summed  up,  and  while  the  plaintiff's 
counsel  were  addressing  the  jury,  the  former  stated,  that, 
from  inspection  of  a  paper,  in  possession  of  a  witness  for 
the  plaintifi'  who  had  been  examined,  he  had  discovered 
material  evidence,  showing  that  the  defendant  had  not 
received  the  money  in  question,  at  the  time  of  suit  brought, 
and  proposed  to  introduce  it,  but  it  was  rejected,  the 
plaintiff  objecting.  The  court  say:  "The  evidence  offered 
was  material. — The  judge,  under  the  circumstances,  had 
a  discretion  to  admit  the  evidence ;  and  it  ought  in  sound 
discretion  to  have  been  received."2(«) 


'  Russell  V.  Conn,  20  N.  Y.  (6        2  Mercer  v.  Sayre,  7  John.  306. 
Smith)  81.     See  Fry  v.  Bennett,  28 
N.  Y.  (1  Tiffa.)  324. 


(a)  We  have  already  (chap.  2)  considered  how  far  the  granting  or  re- 
fusing of  a  new  trial  is  itself  a  matter  of  discretion.  That  it  is  so,  see 
the  following  authorities  :  Harmison  v.  Clark,  1  Scam.  131 ;  Garner  r. 
Crenshaw,  ib.  143 ;  Gillet  v.  Stone,  ib.  539 ;  Werkheiser  v.  Werkheiser, 
6  Watts  &  Serg.  184 ;  Martin  v.  Hays,  5  Mis.  62 ;  Chambers  v.  Camp- 
bell, 15  Conn.  427  ;  Bisel  v.  Hobbs,  6  Blackf.  479;  Hodges  v.  Springer, 
5  ib.  103  ;  Magill  v.  Lyman,  6  Conn.  59 ;  Lewis  v.  Hawley,  1  ib.  49  ; 
Kimball  v.  Cady,  Kirby,  41 ;  Anderson  v.  State,  5  Har.  &  J.  174  ;  Marine 
Ins.  Co.  V.  Hodgson,  G  Cranch,  206 ;  Marine  Ins.  Co.  v.  Young,  5  ib.  187 ; 
Henderson  v.  Moore,  ib.  11 ;  Clemsen  v.  Kruper,  Breese,  162;  Collins  v. 
Claypole,  ib.  164 ;  Street  v.  Blue,  ib.  201 ;  Yernon  v.  Uaj,  ib.  229. 
Otherwise  in  Indiana  and  Missouri.  Goldsby  v.  Robertson,  1  Blackf.  21 ; 
State  V.  Bird,  1  Mis.  585.  With  reference  to  the  right  to  operi  and 
dose;  in  England,  the  general  rule  in  appeals  is,  that  the  respondent  begins ; 
but  when,  under  St.  20  and  21  Yict.,  c.  43,  the  appellant  insists  that  the 
complaint  has  been  wrongfully  dismissed,  the  appellant  shall  begin. 
Jones  V.  Taylor,  1  Ell.  &  B.  20.  On  cross-demurrers  by  plaintiff  and 
defendant,  the  former  begins.  Blackburn  v.  Parkinson,  1  Ell.  &  E.  71. 
In  the  (Jourt  of  Exchequer,  when  cross-demurrers  are  to  be  argued,  the 
party  demurring  first  is  entitled  to  begin.  Redway  v.  Sweeting,  Law 
Rep.  2  Ex.  400.  In  New  Hampshire,  the  party  on  whom  the  burden  of 
proof  in  the  first  instance  devolves  has  the  right  to  open  and  close  ;  and 
an  error  in  the  ruling  of  the  court  in  this  respect  is  good  ground  of  ex- 


406  THE    LAW    OF   NEW    TRIALS.  [CH.  XII. 

ception.  Judge  v.  Stone,  44  N.  IT.  ^92.  In  Iiidiiuia,  -wlicn  tlie  burden 
of  the  issue  is  upon  the  defendant,  he  is  entitled  to  open  and  close  the 
argument.  List  v.  Kortepeter,  26  Ind.  27.  Where  a  complaint  is  con- 
fessed and  avoided,  and  the  answer  is  wholly  denied  and  also  confessed 
and  avoided,  the  defendant  has  the  right,  under  the  code,  to  open  and 
close.  Judah  v.  Vincennes,  23  Ind.  273.  Where  the  defendant,  in  open 
court,  before  entering  upon  the  trial,  admits  the  plaintiff's  cause  of  action, 
he  will  be  entitled  to  open  and  close.  Aurora  v.  Cobb,  21  Ind.  402.  In 
Kansas,  a  suit  was  brought  for  the  price  of  a  carriage :  the  defendant 
answered  by  a  general  denial  of  the  debt,  and  by  alleging  that  he  had 
delivered  to  the  plaintiff  an  order  for  the  sum  due,  which  the  plaintiff 
had  accepted  in  lieu  of  payment.  Held,  under  g  277  Civil  Code,  the  de- 
fendant had  not  the  right  of  opening  the  case  and  introducing  evidence 
on  his  part  first.  The  right  to  open  and  close  the  argument  is  governed 
by  the  same  rule  as  the  production  of  testimony.  Perkins  v.  Ennel,  2 
Kans.  325.  In  Texas,  a  defendant  has  not  a  right  to  open  and  close,  in 
a  suit  to  recover  for  medical  services,  when  the  answer  admits  that  the 
services  were  performed,  and  that  the  charges  were  the  usual  charges  for 
such  services,  but  alleges  that,  by  reason  of  the  unskilful  and  negligent 
treatment  of  the  plaintiff,  he  received  great  damage.  Graham  v.  Gau- 
tier,  21  Tex.  111.  In  Wisconsin,  where  one  of  the  issues  presented  by 
the  pleadings  was,  whether  notes  sued  on  were  usurious,  it  was  not  error 
to  deny  the  defendant's  counsel  the  privilege  of  opening  and  closing  the 
argument,  as  to  that  issue.  It  is  not  usual  thus  to  divide  the  issue  ;  and 
at  all  events  a  mistake  in  that  respect  would  be  no  ground  for  a  new 
trial,  unless  injustice  was  shown  to  have  resulted  from  it.  Central  v.  St. 
John,  17  Wis.  157. 


CH.  XIII.]      ADMISSION   OR   REJECTION   OF   EVIDENCE.  407 


CHAPTER  XIII. 


EVIDENCE.— ADMISSION  OR  REJECTION  OF  EVIDENCE. 


1.  General  rule. 

3.  Effect  of  an  instruction  to 
disregard  incompetent  evidence, 
&c. 

4.  Irrelevant  or  immaterial  evi- 
dence. 

11.  Cumulative  evidence. 

15.  Conflicting  evidence. 

16.  Infamy  of  witness. 

17.  Incompetent  question. 
19.  Secondary  evidence. 

21.  Admission,  as  affecting  the 
course  of  trial. 

22.  Purpose  of  offering  the  evi- 
dence, as  affecting  its  competency. 

27.  Miscellaneous. 

30.  Writings,  hearsay,  secondary 
evidence. 

34,  42.  Evidence  connected  with 
other  evidence. 


39.  Reasons    for    rejecting   evi- 
dence. 

40.  Trial  by  the  courts  or  upon 
torit  of  inquiry. 

41.  Interlocutory  proceedings. 
43.  Evidence  as  connected  with 

the  pleadings. 

49.  Whether  evidence  must  be 
confined  io  facts. 

52.  ]\Iay  come  from  either  party. 

53.  Must  be  regularly  offered. 

54.  Must  be  objected  to ;  form  of 
objection. 

60.  Questions  of  time. 

70.  Depositions. 

72.  Set-off. 

78.  Practice  in  New  York. 

75.  Waiver. 


§  1.  Though  said  not  to  be  without  exceptions,^  yet  it 
is  the  general  rule,  that  the  admission,  against  objection, 
of  material,  inadmissible  evidence,  or  the  exclusion  of 
competent  evidence,  is  ground  of  exception  or  motion  for 
a  new  trial.^  More  especially  if  calculated  to  make  an 
impression  upon  the  minds  of  the  jury.^  Or  where  there 
is  reason  to  believe  that  it  influenced  the  jury  in  their 
verdict,  or  where  the  losing  party  may  have  been  injured 


•  27  Maine,  35. 

2  Trigg  u.  Conway,  1  Hemp.  538; 
Clemson  v.  Cruper,  1  Bree.  162  ; 
Thomkins  v.  Hill,  7  Mod.  64 ; 
Bignall  v.  Devnish,  6  ib.  242 ; 
Gravenor  «.  AVoodhouse,  1  Bing. 
38 ;  Freeman  v.  Arkell,  2  B.  &  C. 


494  ;  Preston  v.  Harvey,  2  H.  & 
Munf.  55 ;  Baxter  v.  Abbott,  7 
Gray,  71  ;  Cook  v.  Brown,  39 
Maine,  443  ;  The  Queen  v.  Wilts, 
6  Mod.  307. 
3  Boyle  V.  Colman,  13  Barb.  42. 


408  THE   LAW    OF   NEW    TRIALS.  [CII.  XIII. 

by  it.'  If  illegal  evidence  be  received,  which  may  have 
had  weight  with  the  jury  on  a  material  issue,  and  a  bill 
of  exceptions  be  taken;  the  court  has  not  power  to  exer- 
cise any  discretion,  in  granting  or  refusing  a  new  trial.-(rt) 
And  it  makes  no  difference,  that  the  evidence  has  been 
wrongly  admitted  conformably  to  a  general  practice.^ 

§  2.  The  point  has  been  much  discussed,  whether  an 
instruction  from  the  court  to  disregard  incompetent  testi- 

•  Handlcy  «.  Call,  27  Maine,  35  ;  Geo.  843;  Culver  ■«.  D wight,  6 
Undcrhill  «.  N.  Y.,  &c.,  21  Barb.     Gray,  444. 

489  ;  Whiting  v.  Otis,  1  Bosw.  420.  ^  "Weeks  v.  Lowerre,  8  Barb. 
But  see  Fitzgerald  v.  Williams,  24    530. 

»  Doe  V.  Perkins,  3  T.  R.  749. 

(a)  But  where,  at  a  trial  in  Bengal,  the  judge  received  certain  docu- 
mentary evidence;  the  Supreme  Court,  on  an  application  for  a  new  trial 
on  the  ground  of  such  evidence  being  improperly  received,  should  con- 
sider the  importance  of  the  evidence.  East  India  Co.  v.  Paul,  1  Eng. 
L.  and  Eq.  44.  An  exception  lies  to  incompetent  evidence,  though 
harmless,  except  in  very  clear  cases.  8  Bosw.  415.  It  is  not  error  to 
admit  relevant  evidence,  although  the  adverse  party  admits  the  fact 
sought  to  be  proved.  Clayton  v.  Brown,  30  Geo.  490.  On  the  other 
hand,  where  a  fact  proposed  to  be  proved  is  admitted,  it  is  not  error  for 
the  court  to  refuse  to  let  it  be  proved  by  witnesses.  Pridgen  v.  Banner- 
man,  8  Jones  L.  53.  An  improper  ruling  out  of  evidence  is  an  error  of 
law  occurring  at  the  trial,  and  is  embraced  in  the  eighth,  not  the  sixth, 
specification  of  causes  for  which,  under  (Ind.)  2  G.  <fe  H.  ?  352,  a  new 
trial  may  be  granted.  Shirk  v.  Cartright,  29  Ind.  406.  There  is  no  rule 
of  law  requiring  that  inquiries  as  to  the  admissibility  of  evidence  should 
be  conducted  apart  from  the  jury  in  criminal  cases.  Mose  v.  State,  36 
Ala.  211.  The  admission  of  material,  incompetent  evidence,  under  ob- 
jection, is  ground  for  a  new  trial,  although  neither  court  nor  counsel 
alluded  to  it  afterwards.  Brown  v.  Cumnings,  7  Allen,  507.  An  appel- 
late court  will  not  grant  a  new  trial  for  the  erroneous  admission  or  rejec- 
tion of  evidence  as  to  a  question  of  deceit,  unless  the  error  is  not  only 
striking,  but  also  calculated  to  mislead  the  minds  of  the  jury.  Walker 
V.  Hawxhurst,  5  Blatchf.  C.  C.  494.  In  North  Carolina,  when  a  witness 
is  allowed  to  testify,  against  objection,  and  the  judge  does  not  state  the 
facts  on  which  his  opinion  in  favor  of  the  competency  depends,  the  parties 
disagreeing  as  to  the  facts,  a  new  trial  will  be  ordered,  because  the  record 
is  defective.    State  v.  Norton,  1  Wins.  No.  1,  303. 


CH.  XIII.]      ADMISSION   OR   REJECTION   OF   EVIDENCE.  409 

mony  would  obviate  the  objection  to  its  admission.  It 
was  said  in  an  early  case  in  New  York,  "  The  admission 
of  such  testimony  (of  a  party's  own  declarations)  was 
illegal  and  dangerous,  and  no  subsequent  caution  or  ad- 
vice by  the  justice,  that  the  jury  ought  to  disregard  what 
the  witnesses  had  sworn,  can  cure  the  irregularity."'  So 
in  a  late  case  in  Pennsylvania,  in  an  action  for  breach  of 
a  boating  contract,  the  judge  charged,  that  the  printed  con- 
tract was  the  contract  of  the  parties,  and  that  all  adver- 
tisements, representations,  proposals,  or  negotiations  (of 
which  evidence  had  been  admitted),  were  merged  in  this 
contract.  But  the  evidence  was  not  withdrawn  from  the 
jury.     In  ordering  a  venire  de  novo,  the  court — Strong,  J. 

remarked :  "  We  cannot  think  this  an  adequate  remedy 

for  the  mischief.  Undoubtedly,  when  a  mistake  has  been 
made  in  the  admission  of  evidence,  it  may  subsequently 
be  rectified.  It  may  be  withdrawn  by  the  party  who  has 
given  it,  or  the  court  may  withdraw  it,  and  positively 
instruct  the  jury  to  disregard  it,  to  discard  it  from  their 
view.  In  such  a  case,  it  is  the  duty  of  the  court  to  see 
to  it  that  no  mischief  is  done ;  that  the  illegal  evidence 
be  withdrawn,  luholli/  ivithdrawn,  and  loithdraion  for  every 
'purpose."^  So  a  new  trial  may  be  had  for  the  admission 
of  illegal  evidence,  though  counsel  state  to  the  jury  that 
they  do  not  ask  or  desire  a  verdict  founded  thereupon ; 
but  the  court  does  not  expressly  exclude  it.^ 

§  3.  But  on  the  other  hand  it  has  been  held,  in  Eng- 
land, that  the  admission  of  incompetent  evidence  is  not 
ground  of  new  trial,  where  the  jury  were  instructed  not 
to  notice  it,  and  the  nature  of  the  verdict  showed  that 
they  did  not.     As  where,  in  an  action  for  seduction  of  a 

1  Penfield  v.  Carpenter,  13  John.  Gilkeson,  5  S.  &  R.  353  ;  Ingliam 
350.  Ace.  Erben  v.  Lorillard,  19  v.  Crary,  1  Pen.  &  W.  389  ; 
N.  Y.  C5  Smith)  399.  Unangst  v.  Kraemer,  8  W.  &■  S. 

2  The  Delaware,  &c.,  v.  Barnes,  391. 

31   Penn.    196.       See   Shaetfer   v.        ^  Decherd  v.  Morrison,  3  Swan, 
Kreitzer,   6  Binn.  430  ;    Nash  v.     305. 


410  THE   LAW    OF   NEW    TRIALS.  [CH.  XIII. 

daiiirliter,  a  promise  of  marriage  was  proved,  and  the  ver- 
dict^vas  for  only  £50.'     So  in  a  late  case  in  Massachu- 
setts, it  is  held  that  no  exception  lies  for  the  admission 
of  evidence  which  afterwards  appears  to  be  irrelevant, 
unless  the  exceptions  show  that  the  court  did  not  instruct 
the  j iny  to  disregard  it.^     In  dissenting  from  the  doctrine, 
upon  this  subject,  of  the  court  in  New  York,  Parker,  J., 
remarks:    "The  reason  that  the  testimony  so  given  in 
presence  of  the  jury  might  have  an  influence,  though  they 
are  directed  to  disregard  it,  would  apply  with  equal  force 
in  all  cases  where  anything  irrelevant  may  have  crept  in 
during  the  course  of  the  trial,  and  would  entitle  parties 
to  a  succession  of  new  trials,  until  no  sentences  should 
have  been  uttered  which,  by  any  possibility,  might  have 
an  undue  influence,  though  the  jurors  were  unconscious 
of  any  influence. "^    In  a  subsequent  case,  the  same  learned 
judge  remarks,  that,  "  where  the  irrelevant  testimony  evi- 
dently may  or  must  have  influenced  the  jury,  notwith- 
stahding  the  instruction  to  disregard  it,  a  new  trial  will 
be  granted."* 

§  4.  Whether  the  admission  or  rejection  of  irrelevant  or 
immaterial  evidence  is  ground  for  a  new  trial,  seems  to  be 
a  point  not  well  settled.(«) 

§  5.  It  is  held,  on  the  one  hand,  that  the  admission  of 
irrelevant  evidence  is  a  good  ground  for  a  new  trial ;  be- 
cause it  is  impossible  to  say  what  influence  the  evidence 

1  Tulli(l<'-e  V.  AVadc,  3  Wils.  18.  ^  Deerfield  «.  Nortluvood,  10  N. 

2  Kundall  v.  Dnane,  9  Gray,  408.     H.  2GU. 

3  llamblett  v.  llamblelt,  G  N.  II. 
333. 


(rt)  A  new  trial  will  not  be  granted  because  tlie  judge  admitted  im- 
material testimony  de  bene  esse,  against  objections,  when  in  the  charge 
the  jury  were  instructed  to  disregard  it.  Philbrook  v.  Burgess,  52  Maine, 
271. 


CH.  XIII.]      ADMISSION   OR  REJECTION   OF  EVIDENCE.  411 

may  have  exerted  on  the  minds  of  the  jury.'  So,  although 
the  jury  might  have  found  the  same  verdict  had  the  tes- 
timony been  kept  out.^  More  especially  if  the  evidence 
had  a  tendency  to  prejudice  their  minds,  or  raise  false  im- 
pressions, the  court  may  in  their  discretion  grant  a  new 
trial.3  Thus,  on  a  trial  for  larceny,  evidence  was  admitted 
of  a  conversation,  in  which  the  prisoner  asked  a  witness 
to  "notice  where  A.  kept  his  money."  Such  evidence 
was  totally  irrelevant  to  the  charge  on  trial,  and  all  the 
evidence  in  the  case  was  circumstantial.  Held,  sufficient 
ground  for  a  new  trial.^  So  where  the  plaintiif  was  the 
mother  of  the  defendant,  and  incompetent  but  immaterial 
evidence  was  admitted,  subject  to  exception,  consisting  of 
vile,  profane,  and  abusive  language  used  by  the  defendant 
in  regard  to  the  plaintiff;  it  was  held  that,  such  evidence 
being  highly  calculated  to  prejudice  the  minds  of  the 
jury,  and  being  ruled  admissible  by  the  court,  the  verdict 
should  be  set  aside.^(a) 

§  6.  In  justification  of  this  class  of  decisions,  it  is  said: 
"Illegal  or  improper  evidence  (however  unimportant  it 

'  Dresser  «.  Ainsworth,  9  Barb.  Wiukley  v.  Foye,  33  N.  H.  171. 

619  ;  10  B.  Mon.  IG  ;  Dougherty  v.  Pee    Buddington    v.   Shearer,    22 

Vanderpool,  35  Miss.  165  ;  Thur-  Pick.  427 ;   Com.  v.  Bosworth,  ib. 

mond   V.   Trammell,  2  Tex.  257;  397;  Clark  «.  Vorse,  19  Weud.  232; 

Walpole  v.  Renfroe,  16  La.  An.  93.  Swamscott,  &c.  v.  Walker,  2  Fost. 

2  Daniel  v.  Nelson,  10  B.  Mon.  457 ;  Keyes  v.  Throop,  2  Aik.  276. 
316  *  Shaw  V.  State,  8  Sneed.  86. 

3  Ellis  V.  Short,  21  Pick.  142  ;  s  Center  v.  Center,  38  N.  H.  318. 


(a)  A  new  trial  will  be  granted  for  the  admission  of  totally  irrelevant 
testimony,  when  the  other  testimony  is  not  preserved  in  the  record,  and 
the  court  therefore  cannot  tell  what  the  verdict  should  have  been  without 
the  testimony  improperly  admitted.  Smith  v.  Russ,  22  Wis.  439.  One 
party  cannot,  by  consenting  to  the  admission  of  irrelevant  evidence 
offered  by  the  other,  acquire  a  right  to  introduce  evidence  equally  irrele- 
vant. Shank  v.  State,  25  Ind.  207.  When  the  court,  after  granting  a 
motion  for  the  suppression  of  a  deposition  as  containing  irrelevant  matter, 
permits  the  matter  to  go  to  the  jury  without  a  reasonable  notice  to 
the  party  making  the  motion,  the  latter  is  entitled  to  a  new  trial.  The 
Violet  V.  McKay,  23  Ark.  543. 


412  THE    LAW    OF    NEW    TRIALS.  [CII.  XIII. 

may  bo  to  the  cause)  ought  never  to  be  confided  to  the 
jury;  for  if  it  should  liave  an  influence  upon  their  minds, 
it  will  mislead  them,  and  if  it  should  have  none,  it  is  use- 
less, and  may  at  least  jiroduce  perplexity."^  And,  with 
regard  to  the  rejection  of  competent  evidence,  "the  court 
cannot  weigh  the  degree  of  relevancy,  or  say  what  etfect 
any  fact  that  is  relevant  would  have  had  on  the  minds  of 
the  jury."2 

§  7.  But  on  the  other  liand  it  is  held,  that,  generally,  a 
new  trial  will  not  be  granted,  merely  because  irrelevant 
or  impertinent  testimony  has  been  admitted  or  rejected.^ 
And  the  same  rule  applies  to  a  question  not  shown  to  be 
relevant;*  or  the  rejection  of  a  witness,  unless  it  appears 
that  he  could  give  some  relevant  testimony  f  or  testimony 
in  relation  to  a  particular  fact,  which  fact  is  immaterial 
to  the  issue.^  As  wdiere  a  witness  testified,  inadvertently, 
to  other  declarations  of  the  plaintifl:'  than  those  inquired 
of  by  the  defendant,  and  upon  the  other  evidence  the 
verdict  for  the  plaintifl:'  was  clearly  right.''  So  where,  in 
a  case  relating  to  damages  for  the  construction  of  a  rail- 
road, the  jury  having  viewed  the  premises,  the  plaintiflt' 
was  not  permitted  to  inquire  of  a  witness,  w^hether  the 
roads  crossing  the  railroad  rendered  it  more  or  less  dan- 
gerous for  horses,  &c.,  in  going  from  one  part  of  the  farm 
to  another;  more  esj)ecially  as  one  witness  had  said  there 
was  inconvenience  and  danger.^  So  it  was  held  erroneous 
to  reject  a  deposition,  taken  many  years  before,  and  twice 

'  PerTuckcr,  J.,  Brown  ».  May,  »  Faircliikl  v.  Case,   24   Wend. 

1  Mvmf.  288.  381. 

2  Per  Lp  Blanc,  J.,  Edwards  v.  ^  Bates  v.  Barber,  4  Cusli.  107. 
Evans,  3  E.  451.  ^  Polleys  v.  Ocean  Ins.    Co.,  2 

3  Adams  v.  Blodj^'ott,  47  N.  II.  Shop.  141  ;  Watson  v.  Lisbon 
219;  Hand  v.  Dodav,  17  ib.  343;  Brida:e,  2  Shop.  201  ;  Merriani  v. 
Packard  v.  New  Beilford,  0  Allen,  Mitchell,  1  Shop.  439  ;  Barry  v. 
200;  Marshall  v.  Morris,  10  Goo.  Bennett,  7  Met.  354 ;  Kimberlin  «. 
3G8;  Brown  v.  May,  1  jNIunf.  288  ;  Faris,  5  Dana,  533. 

Walker  ®.  Leighton,  11  Mass.  140;  ^  pnuce  v.  Shepherd,  9  Pick. 
Mitchell  V.  Rome  Railroad  Co.,  17    170. 

Geo.  574.  ^  Pinneo    v.  The  Lackawanna, 

&c.,  43  Penn.  3G1. 


CH.  xiil]     adxMISsion  or  rejection  of  evidence.  413 

read  in  former  trials  without  objection,  tliou<^li  no  proof 
be  offered  of  notice  of  the  time  and  place  of  taking  it. 
But,  the  subject-matter  of  the  deposition  being  unim- 
portant, such  rejection  is  no  ground  for  a  new  trial. '(a) 

§  8.  The  distinction  is  made,  in  New  York,  that,  if  the 
chances  arc  equal,  that  irrelevant  testimony  may  have 
had  an  injurious  tendency  on  the  jury,  a  new  trial  will  be 
granted  of  course  on  a  bill  of  exceptions  ;  but  on  a  casc\  the 
court  exercises  its  discretion,  when  no  injury  can  have 

'  Hill  V.  Meyers,  43  Penn.  170. 

(a)  A  new  trial  will  not  be  ordered  for  the  rejection  of  testimony, 
which  could  not  change  the  verdict.  Brown  v.  Hoburger,  52  Barb.  15 ; 
Robinson  v.  Keith,  25  Iowa,  321.  A  verdict  will  not  be  set  aside,  merely 
because  light  testimony,  which  would  not  be  likely  to  affect  the  result, 
has  been  improperly  excluded,  especially  if  witnesses  have  been  exa- 
mined upon  the  same  point.  Merriman  v.  Fulton,  29  Tex.  97.  Nor 
because  the  court  excluded  evidence,  which,  though  properly  admissible, 
was  vague  and  circumstantial,  and  where,  had  the  jury  acted  upon  such 
evidence,  and  disregarded  the  positive  evidence,  it  would  have  been  the 
duty  of  the  court  to  set  aside  the  verdict.  McKikhan  v.  McBean,  45 
111.  228.  The  improper  admission  of  immaterial  evidence  is  no  ground 
for  disturbing  a  verdict,  when  no  harm  can  result  therefrom.  Rollins  v. 
Chester,  46  N.  H.  411;  Illingworth  v.  Greenleaf,  11  Min.  235;  Winona, 
&c.  R.  R.  Co.  V.  Waldron,  ib.  515.  Or  when  there  was  otherwise  sufiBcient 
evidence.  Zeigler  v.  Wells,  28  Cal.  263.  In  a  suit  to  recover  commis- 
sions not  specified  in  a  charter-party,  a  letter  written  by  one  of  the  de- 
fendants to  another,  nearly  two  years  before  the  charter  was  made,  and 
containing  some  statement  as  to  what  was  the  usual  commission  in  such 
cases,  was  held  irrelevant,  except  that  part  of  it,  which  related  to  the 
usage;  but  the  admission  of  the  whole  letter  was  held  no  ground  for 
disturbing  the  verdict.  Weber  v.  Kingsland,  8  Bosw.  415.  A  verdict 
for  the  plaintiff,  in  an  action  for  deceit  in  the  sale  of  a  horse,  by  repre- 
senting that  he  was  kind,  orderly,  and  quiet  in  harness,  when  he  had  the 
vice  of  kicking  in  harness,  will  not  be  set  aside,  merely  because  the  plain- 
tifl",  while  testifying  to  an  instance  of  the  horse's  kicking  violently  in 
harness,  after  being  driven  by  himself  and  a  friend,  a  few  days  after  the 
purchase,  was  permitted  to  state,  that,  when  he  was  about  to  drive  out 
that  day  "  his  wife  and  child  were  ready,  having  their  things  on,  to  go 
with  him."     Richardson  v.  Warren,  6  Allen,  552. 


414  THE    LAW    OF   NEW    TRIALS.  [Clf.  XIII. 

resulted  to  the  })arty.'  And  in  late  cases  it  is  laid  down, 
that  a  verdict  will  not  he  set  aside  for  the  admission  of 
immaterial  evidence,  unless  it  is  quite  apparent  that  it 
influenced  the  jury  in  their  decision  f  and  that  the  rele- 
vancy of  ovidence  prijnd  facie  irrelevant  must  he  shown, 
or  it  should  he  rejected.^ 

§  9.  It  is  not  error  to  allow  the  withdrawal  of  imma- 
terial evidence.'* 

§  10.  More  especially  is  the  admission  of  immaterial 
evidence  no  ground  of  new  trial,  if  accompanied  by  in- 
structions to  disregard  it,  and  if  there  is  no  reason  why 
it  should  have  any  eliect.^ 

§  11.  It  is  sometimes  held,  that  the  wrongful  admission 
or  exclusion  of  evidence,  although  cumulative,  is  ground 
for  new  trial.''  It  was  remarked  by  the  court  in  Massa- 
chusetts, in  granting  a  new  trial  for  the  admission  of 
irrelevant  evidence :  "  The  English  courts,  and  those  of 
some  of  our  sister  States,  exercise  a  much  broader  discre- 
tion in  relation  to  the  granting  of  new  trials,  than  we  do. 
Their  practice  is  to  refuse  new  trials  for  the  improper  ad- 
mission or  rejection  of  evidence,  whenever,  in  their  opinion, 
such  erroneous  admission  or  rejection  of  evidence,  whether 
material  or  immaterial,  ought  not  to  have  atiected  the 
verdict,  or  substantial  justice  has  been  done.  This  seems 
to  us  to  trench  upon  the  province  of  the  jury."^  And 
the  rule  was  applied  in  New  York,  though  a  fact  was 
proved  by  two  other  witnesses.^ 

'  Farmers'    Bank  v.  AVliinfiold,  ^  Dossett  v.  Miller,  3  Snecd,  72 ; 

24  Wend.  419.  Osgood  v.  The  Manhattan,  &c.,  3 

2  Center  v.  Center,  38  N.  II.  318.  Cow.  C13. 

3  McGarrity  v.  Byington,  13  Cal.  ?  Per  Morton,  J.,  P^llis  v.  Short, 
426.  21  Pick.  145. 

■*  Davenport  v.  Harris,  27  Geo.  ^  Marquand  v.  Webb,  10  John. 

68.  89;  Mayer  (i.  Wiltbcrgcr,  Geo.  Dec. 

5  Whitney  v.  Bayley,  4  Allen,  Part  II.,  20. 
178. 


en.  XIII.]      ADMISSION  OR   REJECTION   OF   EVIDENCE.  415 

§  12.  But  the  prevailing  rule  is,  that  the  exclusion  of 
evidence,  to  prove  a  fact  which  is  otherwise  proved,  is  no 
ground  of  new  trial ;'(«)  or  the  exclusion  of  cumulative 
evidence,  upon  a  point  already  conclusively  proved  f  or 
the  admission  of  evidence  to  a  point  otherwise  suffi- 
ciently proved.'  Where,  for  example,  the  verdict  is  pre- 
cisely such  as  the  jury  ought  to  have  rendered  upon  the 
plaintiff's  evidence,  a  new  trial  will  not  be  granted,  be- 
cause the  judge  admitted  unlawful  testimony  on  the  part 
of  the  defendant,  if  it  was  only  corroborative  of  the  facts 
already  proved  by  the  plaintilf.'*  It  is  said  :  "  The  court 
will  not  set  aside  a  verdict  on  account  of  the  admission  of 
evidence  which  ought  not  to  have  been  received,  provided 
there  be  sufficient  without  it  to  authorize  the  finding  of 
the  jury."^  And,  in  another  case:  "Though  particular 
portions  of  evidence  are  objected  to,  if  the  rest  be  suffi- 
cient to  warrant  the  conclusion  to  which  the  jury  have 
come,  the  court  will  not  interpose."^ 

§  13.  Thus,  although  it  is  irregular  for  the  plaintiff  to 
read  in  evidence  the  letter  of  a  witness  that  has  been  re- 
ferred to  in  a  deposition  for  the  defendant,  yet,  if  con- 
firmatory of  other  competent  testimony  in  the  case,  it  is 
no  cause  for  a  new  trial.^  So  where  evidence,  that  A.  re- 
peated the  instructions  of  the  grantor,  relative  to  the  order 
of  recording  certain  deeds  to  B.,  had  been  received ;  it 
was  held,  that,  although  the  fact  proved  had  no  positive 
efficacy  in  the  delegation  of  authority,  and  the  evidence 

•  Bull  v.  Griswold,  19  111.  G31.  ^  Steelman  -y.  Steelman,  1  Harr. 

2  Litchfield  «.  Londonderry,  39    G6. 

N.  H.   247;   Drake  v.  Surget,   3G  ^  Per  Mansfield,  C.  J.,  norford 

Miss.  458.  «.  Wilson,  1  Taun.  12. 

3  Mathis  «.  Colbert,  24  Geo.  384;  «  Per  Parker,  J.,  Teyhnam  "O. 
Turner  «.  Mclllianey,  8  Cal.  575.  Tyler,  6  Bing.  5G1. 

'  Dickinson  «.  Burr,  15  Ark.  372. 

(a)  Evidence  to  rebut  the  plaintiff's  rebuttal  is  admissible,  though 
merely  cumulative.     Walker  v.  Fields,  28  Geo,  237. 


416  TUE    LAW    OF   NEW    TRIALS.  [ciI,  XIII. 

itself  was  incompetent,  yet,  as  it  did  not  detract  from  the 
power  i)rcviously  given,  the  admission  of  such  evidence 
furnislicd  no  ground  for  a  new  trial.^  So  where  the  plain- 
tifl"  proves  a  sale  and  delivery,  and  the  defendant  a  credit, 
and  the  plaintiff  then  offers  an  admission  against  such 
credit,  which  is  excluded.^  So  where  the  same  interroga- 
tories were  addressed  to  A.  and  13.,  and  A.  answered  fully, 
and  B.  answered  "  I  know  the  answers  given  by  A.,  and 
I  adopt  them  as  mine  as  to  all  material  facts ;"  but  the 
evidence  of  B.  was  rejected; — it  being  cumulative,  in- 
definite, and  immaterial.^ 

§  14.  And  this  rule  more  especially  applies,  where  the 
evidence  was  not  objected  to  ;*  or  where  the  other  evidence, 
of  which  the  testimony  in  question  is  cumulative,  greatly 
preponderates  over  the  evidence  on  the  other  side.*  So  it 
was  applied,  where  a  witness  was  rejected  on  the  ground 
of  interest,  who  was  called  to  prove  a  fact  which  it  was 
admitted  had  been  proved  by  another  witness.^  So  where 
a  female  witness,  on  cross-examination,  admitted  her  crimi- 
nal connection  with  several  persons,  and  evidence  of  the 
same  connection  with  others  was  excluded.'^  It  is  said : 
"  "Where  the  objection  merely  is,  that  what  was  proved 
by  one  witness  could  have  been  proved  by  two;  there 
being  no  denial  of  the  fact  which  he  was  called  to  prove, 
on  the  part  of  the  defendant,  but  the  defendant  going  to 
the  jury  on  a  defence  altogether  collateral  to  that  fact, 
there  is  no  ground  for  the  court  to  interfere  by  granting 
a  new  trial"  (to  the  plaintiff).^  And,  in  another  case,  "it 
has  been  contended  that  we  are  to  analyze  the  evidence 
by  a  difhcult  process,  and  to  discriminate  the  precise  effect 
produced  on  the  mind  of  the  jury  on  each  portion  of  tlie 
proof ;  but  we  have  a  much  plainer  course ;  and  that  is, 

'  Beers  v.  Broome,  4  Conn.  247.  ^  Doe  v.  Tyler,  6  Bing.  561. 

2  ]\rjicullar  V.  Wall,  ('.  Gray,  507.  6  Edwards  v.  Evans,  8  E.  451. 

3  Hopkins  V.  Clark,  20  Tex.  01.  ?  The  King  v.  Teal,  11  E.  1507. 
*  Horlbrd  v.  Wilson,  1  Tuuu.  12.  ^  Edwards  v.  Evans,  6  E.  451. 


CII.  XIII.]      ADMISSION  OR   REJECTION   OF   EVIDENCE.  417 

to  hear  the  report  of  the  trial,  and  to  sustain  the  verdict 
if  we  all  are  satisfied  that  there  is  enough  to  warrant 
the  finding  of  the  jury,  independently  of  the  evidence 
objected  to."^ 

§  15.  More  especially  where  the  evidence  is  conflicting^ 
and  illegal  evidence  has  been  admitted,  which  might  have 
influenced  the  jury,  a  new  trial  will  be  granted.^  And 
where  much  evidence  has  been  received,  some  of  which  is 
incompetent,  the  case  should,  in  general,  be  sent  back  for 
a  new  trial,  as  the  court  cannot  say  on  what  evidence  the 
jury  decided.^ 

§  16.  A  verdict  founded  on  the  testimony  of  an  in- 
famous witness  will  be  set  aside.*(a) 

§  17.  The  point  of  admission  or  rejection  of  evidence 
may  arise  in  connection  with  a  question  as  well  as  an 
answer.  Thus  where  the  testimony  of  a  defendant,  in  his 
own  behalf,  was  improperly  admitted,  but  a  material 
question  to  him,  which  should  have  been  allowed,  was 
overruled,  he  is  entitled  to  a  new  trial.'  So  if  an  irrele- 
vant question  is  objected  to,  though  the  answer  is  not." 
But  a  new  trial  will  not  be  granted,  for  refusal  to  admit 
a  question  which  was  not  shown  to  be  relevant.^ 

§  18.  It  is  no  ground  for  a  new  trial,  that  inadmissible 
evidence  was  given  by  a  witness,  in  answer  to  a  question 
which  did  not  call  for  it,  and  was  not  objected  to  ;  if  the 

•  Per  Tindal,  C.  J.,Doeii.  Tyler,  ^  Anderson  v.  Busteed,  5  Duer, 
6  Bing.  561.  485. 

2  Settle  V.  Alison,  8  Geo.  201.  ^  Gilmer  v.  Montgomery,  26  Ala. 

3  Gage  V.  Mcllwaine,  1  Strobli.     665. 

135.  ^  Faircliild  v.  Case,  24   Wend. 

*  Allen  V.  Young,  6  Monr.  136.       381. 

(a)  Kejecting  the  testimony  of  a  free  negro,  to  facts  which  occurred 
while  he  was  a  slave,  was  held  ground  of  new  trial.     Gurney  v.  Dessies, 
1  John.  508. 
27 


418  THE   LAW    OF   NEW    TRIALS.  [CH.  XIII. 

judge  at  once  declared  tlie  evidence  inadmissible,  and  in- 
structed, the  jury,  in  his  charge,  to  disregard  it.'(a) 

§  19.  In  general,  the  admission  of  secondary  evidence  is 
illegal. (/>)  (See  §  32.)  But  a  new  trial  will  be  granted 
for  the  rejection  of  secondary  evidence,  after  the  intro- 
duction of  sufficient  preliminary  proof  to  justify  its  ad- 
mission ;  all  the  evidence  being  reported.^ 

§  20.  It  is  no  ground  of  new  trial,  that  a  copy  was  ex- 
cluded, if  the  original  was  afterwards  admitted.^ 

'  Travis  v.  Barker,  24  Barb.  614.        ^  Kutzmcyer  n.  Ennis,  3  Dutch. 
2  llatcli  V.  Carpenter,   9   Gray,     371. 
371. 

(a)  It  is  not  cause  for  new  trial,  that  an  improper  inquiry  of  a  v;\i- 
ness  was  allowed,  if  no  improper  evidence  be  obtained  by  the  answer. 
Eandolph  v.  Woodstock,  35  Vt.  291.  Or  when  it  is  manifest  that  the 
answer  could  not  have  prejudiced  the  excepting  party.  Hovey  v.  Hob- 
son,  55  Maine,  25G.  Or  where  a  question  is  improperly  ruled  out  on  the 
cross-examination,  and  afterwards  allowed  upon  the  direct  examination 
of  the  party  asking  the  question.  Dennis  v.  Van  Voy,  2  Vroom,  38.  In 
an  action  brought  by  one  of  two  parties  upon  a  cause  of  action  which 
accrued  to  the  firm,  and  had  been  released  by  the  co-partner  to  the  plain- 
tiff, a  question  put  to  a  witness,  "  what  was  said  by  the  plaintiif  about 
commencing  suit  in  New  York  rather  than  in  London  ?"  was  excluded. 
Held,  if  the  word  "  plaintiff"  was  intended  to  refer  to  the  partner  who 
had  released,  and  who  had  been  examined  as  a  witness,  the  question  was 
not  competent  except  for  the  purpose  of  contradicting  him  or  affecting 
his  credibility.  But  if  it  was  intended  to  refer  to  the  actual  plaintin", 
the  testimony  was  competent,  and  its  relevancy  could  not  be  determined 
on  the  face  of  the  question.     Weber  v.  Kingsland,  8  Bosw.  415. 

(6)  It  is  no  ground  for  a  new  trial,  that  secondary  evidence  was  ad- 
mitted without  a  foundation  for  it  being  laid,  if  no  objection  was  made. 
Myer  v.  Avery,  23  Ind.  510.  It  is  error  to  instruct  the  jury  to  disre- 
gard secondary  evidence  which  was  admitted  without  objection.  Davis 
V.  Strohm,  17  Iowa,  421.  A  new  trial  will  be  granted,  where  the  proof 
of  the  loss  of  a  deed  and  subsequent  search  for  it  was  not  sufQcient  to 
warrant  secondary  evidence  as  to  its  contents,  and  such  evidence  was 
irregularly  introduced  and  left  in  terms  of  too  general  import  to  the  jury. 
Bartholomew  v.  Edwards,  1  Iloust.  247. 


CIL  XIII.]      ADMISSION   OR   REJECTION   OF   EVIDPINCE.  419 

§  21.  The  mode  of  proceeding  at  a  former  trial  fur- 
nishes no  ground  of  objecting  to  a  verdict  for  the  admis- 
sion of  evidence,  although  such  admission  necessarily 
changes  the  course  of  proof  for  the  other  party.  Thus, 
after  one  party  had  put  in  evidence  certain  books  of  ac- 
count, supported  by  the  testimony  of  the  bookkeeper  who 
kept  them,  the  parties  agreed  to  refer  the  books  to  an 
auditor,  for  the  purpose  of  his  stating  the  result  of  his 
examination,  on  the  stand,  to  the  jury,  which  he  accord- 
ingly did.  It  was  held,  that  the  admission  in  evidence 
of  the  testimony  of  the  auditor,  and  his  report  so  made, 
on  a  subsequent  trial  of  the  same  cause,  after  the  books 
had  been  righly  admitted  in  evidence,  on  other  testimony 
than  that  of  the  bookkeeper,  was  no  ground  for  a  new 
trial,  although  the  other  party  was  thereby  obliged  to  call 
the  bookkeeper  as  his  witness.^ 

§  22.  Evidence,  objectionable  for  one  purpose  or  upon 
one  issue,  is  properly  rejected,  if  thus  ofiered,  though  ad- 
missible for  another  purpose,  or  upon  another  issue.^  (See 
§  57.)  It  is  said:  "  If  such  a  practice  were  allowed,  testi- 
mony would  be  thrust  into  a  cause  with  one  open,  avowed 
object,  but  with  the  secret  purpose  of  applying  it  to  an- 
other ;  and  by  reason  of  it  not  only  the  rules  of  law,  but 
the  ends  of  justice  would  be  perverted."^  And,  in  another 
case,  with  more  special  reference  to  the  objections  against 
such  evidence:  "The  objector  is  bound  always  to  define 
and  limit  his  objection  to  evidence  which  is  inadmissible 
for  the  purpose  for  which  it  is  introduced."*  Thus  it  is 
not  error,  to  reject  testimony  which  was  only  proper  to 
establish  an  incidental  matter,  where  it  was  not  ofiered 
or  pressed  for  that  purpose,  but  as  afiecting  the  issue 
directly.^     So,  where,  in  an  indictment  against  A.  and  B. 

1  Holbrook  v.  Jackson,  7  Cusli.  3  Per  Hubbard,  J.,  Leonard  v. 
130.  Smith,  11  Met.  383. 

2  Parke  v.  Foster,  26  Geo.  465  ;  *  Per  Sanford,  J.,  State  v.  TTads- 
O'Brien  v.  Hilburn,  22  Tex.  616.  worth,  30  Coun.  56. 

5  State  V.  Neville,  6  Jones,  423. 


420  THE    LAW    OF   NEW    TRIALS.  [CH.  XIII. 

for  the  sale  of  intoxicating  liquor,  A.  objected  to  the  intro- 
duction of  evidence,  either  that  he  was  guilty  severally, 
or  jointly  with  B.,  and  the  objection  was  overruled,  a  new 
trial  was  refused.^  So  evidence  admissible  only  with  refe- 
rence to  particular  questions  not  necessarily  arising,  and 
not  then  appearing  in  the  case,  must  be  oflered  with  an 
explanation  of  the  questions  upon  which  it  may  be  mate- 
rial.^ So  the  admission  of  evidence  for  one  purpose,  made 
legal  by  statute  for  another,  is  ground  of  new  trial.^ 

§  23.  But,  on  the  other  hand,  it  is  ground  of  new  trial, 
that  complex  evidence  objected  to  was  all  excluded,  a  part 
being  competent ;  though  the  burden  of  proof  is  on  the 
party  who  alleges  the  competency.^  So  where  part  of  a 
deposition  is  competent,  but  it  is  wholly  rejected.'  So 
where  the  defendant,  who  was,  under  the  statutes  then  in 
force,  entitled  to  testify  only  as  to  some  special  matters, 
was  ofiered  "  generally  in  his  own  behalf"  and  was  re- 
jected; this  was  held  to  be  error  and  ground  for  a  new 
trial ;  as  it  was  not  shown  by  the  plaintiff,  upon  whom 
was  the  burden  of  proof  in  this  respect,  that  the  defendant 
would  not  have  examined  the  witness  at  all,  unless  he 
could  be  allowed  to  do  so  generally.^ 

§  24.  Evidence  may  properly  be  admitted  for  a  specific 
purpose,  though  not  admissible  generally.(«)     (See  §  44.) 

•  State  V.  Wadswortli,  30  Conu.  "  Carroll  v.  Granite,  &c.,  11  Md. 

55.  399. 

2  Floyd  V.  Hamilton,  33  Ala.  235.  ^  Hatton  v.  McClisli,  6  Md.  407. 

3  French  v.  Brandon,  1  Head,  47.  ^  Brown  v.  Richardson,  20  N.  Y. 

(G  Smith),  472. 

(a)  The  operation  of  evidence,  stated  to  be  introduced  for  a  certain 
purpose,  should  be  restricted  to  that  purpose.  Henry  v.  Everts,  29  Cal. 
GlO.  Instructions  given  to  a  witness,  employed  by  the  plaintiff  to  take 
a  note  to  defciulunts'  l)ank  for  collection,  arc  admissible  to  ])rove  a  special 
agency;  and  the  fact  that  they  were  admitted  on  that  ground,  although 
offered  upon  another  and  untenable  ground,  is  not  suiricient  cause  for  a 
new  trial.     Nininger  v.  Knox,  8  Min.  140.     There  is  no  error  in  over- 


CH.  XIII.]      ADMISSION   OR   REJECTION   OF   EVIDENCE.  421 

Thus  in  an  action,  brought  by  a  mortgagee  against  the 
assignee  in  insolvency  of  his  mortgagor,  to  recover  the 
property,  in  which  the  defendant  undertakes  to  avoid  the 
mortgage  as  a  preference;  the  admission  of  the  schedules 
of  debts  and  other  papers  filed  in  the  proceedings  in  insol- 
vency, only  as  evidence  that  such  proceedings  were  had, 
and  not  as  evidence  of  the  facts  stated  in  the  papers,  is  no 
ground  for  a  new  trial.^ 

§  25.  One  ofter  of  evidence,  to  be  used  for  several  spe- 
cified purposes,  may  be  refused,  if  inadmissible  for  any. 
The  party  should  offer  it  for  each,  separately. ^  So  if  tes- 
timony is  offered  as  a  whole,  a  part  being  incompetent, 
and  all  is  excluded.^  So  where  the  offer  is  open  to  two 
constructions ;  unless  it  is  made  perfectly  plain  that  the 
one  favorable  to  the  party  is  the  true  one,  as  understood 

'  Holbrook  v.  Jackson,  7  Cusli.  2  Johnson  v.  Marshall,  34  Ala. 
136.  523. 

3  Barlow  v.  Lambert,  28  Ala.  704. 

ruling  a  general  objection  to  testimony,  which  is  admissible  for  any  of 
the  purposes  for  which  it  is  offered.  Nutwell  v.  Tongue's,  22  Md.  419 ; 
Fountain  v.  Brown,  38  Ala.  72.  When  one  party  is  not  required  by  the 
other  to  state  the  purpose  for  which  he  oflFers  evidence,  it  is  admissible  if 
competent  for  any  purpose.  King  v.  Faber,  51  Penn.  387.  When  evi- 
dence is  offered,  of  which  a  portion  is  illegal,  the  court  may  reject  all. 
Gregory  v.  Walker,  38  Ala.  26 ;  Crutcher  v.  Memphis,  ib.  579.  Although 
a  party  tendering  evidence  in  proof  of  fraud  need  not  state  in  a  single 
offer  everything  he  intends  to  prove,  it  should  appear  to  the  judge  that 
the  evidence  has  some  relevancy  to  the  issue,  and,  if  he  is  not  informed 
of  the  connection,  the  Supreme  Court  cannot  say  that  he  committed  a 
clear  error  in  rejecting  it.  Davenport  v.  Wright,  51  Penn.  292.  Where 
the  validity  of  a  married  woman's  deed,  certified  as  voluntarily  acknow- 
ledged, was  in  question ;  held,  an  offer,  to  show  that  the  deed  was  exe- 
cuted under  compulsion  from  the  husband,  need  not  be  accompanied  by 
an  offer  to  show  that  the  purchaser  knew  of  such  compulsion,  when  the 
testimony  already  introduced  tended  to  show  the  purchaser's  knowledge 
of  the  woman's  unwillingness  to  sell.  Every  offer  of  evidence  need  not 
state  all  the  additional  facts  necessary  to  constitute  a  full  case.  Hall  v. 
Patterson,  51  Penn.  289. 


422  THE   LAW    OP   NEW    TRIALS.  [CH.  XIII. 

b}'  the  court.  As  whore  evidence  would  be  competent  in 
mitio:ation  of  damages,  though  not  as  a  defence  to  the 
action.^  And  where  testimony  is  admitted  after  a  motion 
to  exclude  it,  the  burden  is  on  the  complaining  party  to 
show  that  he  objected  only  to  the  incompetent  portion.' 

§  26.  Where  evidence  of  fraud  was  admitted  in  miti- 
gation of  damages,  which,  if  believed,  would  have  ren- 
dered the  damages  merely  nominal,  and  full  damages  are 
given;  it  is  no  ground  of  error  on  the  part  of  the  de- 
fendant, that  the  evidence  was  not  received  as  a  defence 
to  the  action.  The  court  remark,  "  Had  the  jury  believed 
(the  witness),  and  given  full  effect  to  his  evidence,  they 
would  have  given,  under  the  instructions  they  received, 
only  (nominal  damages),  and  then  we  should  not  have 
seen  the  defendant  here  complaining.  It  is  apparent, 
therefore,  that  he  is  here  not  on  account  of  the  error  of 
the  court  in  submitting  the  evidence  in  the  manner  they 
did,  I)ut  because  the  jury  did  not  give  it  all  the  effect 
hoped  for.  If  the  jury  erred,  we  have  no  correctional 
power.  It  is  enough  for  us  that  we  see  no  error  in  what 
the  court  did."^ 

§  27.  It  is  sometimes  competent  to  prove  a  general  fact, 
bearing  upon  the  issue,  without  the  right  of  going  into 
the  details  and  particulars  of  which  it  is  made  up.  But 
where  a  will  was  propounded  for  probate,  discriminating 
largely  in  favor  of  the  present  wife  and  against  children 
by  the  first  wife,  which  was  alleged  to  have  been  produced 
by  undue  influence  of  the  wife  over  the  testator;  and  a 
witness  testified  to  "bad  feeling"  between  the  wife  and 
one  of  her  step-children,  but  so  much  of  his  testimony  as 
explained  its  origin,  nature,  and  extent,  was  excluded: 
held,  this  testimony  should  have  been  admitted,  and  a 
new  trial  must  consequently  be  granted.^ 

'  Button  V.  McCauley,  38  Barb.  ^  Smith  v.  Emerson,  43  Pcnn. 

413  456,  400;  per  AVoodward,  J. 

2  Carroll  v.  Granite,  &c.,  11  Md.  ••  Cox  o.  Rutledge,  18  Goo.  294. 
899. 


en.  XIII.]      ADMISSION  OR  REJECTION   OF   EVIDENCE.  423 

§  28.  "Where  words  spoken,  and  accompanying  acts 
proved,  justify  the  verdict,  although  words  alone  would 
not ;  the  verdict  will  not  bo  set  aside,  because  the  witness, 
in  testifying  of  the  words,  stated  what  he  understood  from 
them,  which  was  in  accordance  with  the  verdict.* 

§  29.  It  is  ground  of  new  trial,  that  competent  evidence 
was  excluded  in  chief,  though  received  to  contradict  other 
testimony.' 

§  30.  In  general,  as  we  shall  see,  an  objection  must  have 
been  made  at  the  trials  in  order  that  it  may  be  validly  taken 
as  the  ground  of  a  new  trial.  But  where  a  party  objected 
to  the  admission  of  so  much  of  certain  depositions  as  gave 
evidence  of  hearsay,  but  the  exception  did  not  specify  the 
particular  parts  objected  to,  and  the  court  admitted  the 
depositions,  but  instructed  the  jury  that  those  parts  which 
gave  evidence  of  hearsay  were  to  be  considered  only  for 
the  purpose  of  corroborating  the  testimony  of  other  wit- 
nesses ;  it  was  held  that  the  exception  was  valid,  notwith- 
standing its  generality.^ 

§  31.  It  is  ground  of  new  trial,  where  a  witness  has 
died,  that  the  court  reads  his  whole  testimony,  a  part 
being  incompetent.** 

§  32.  A  verdict  will  be  set  aside  for  the  rejection  of 
secondary  evidence,  where  a  paper  is  sufficiently  proved 
to  be  lost.*  (See  §  19.)  Or  of  a  lease,  more  than  thirty 
years  old,  where  a  corresponding  possession  was  proved.*' 
So,  on  the  other  hand,  a  new  trial  was  refused,  where 
parol  evidence,  improperly  received,  was  immediately  fol- 
lowed by  the  requisite  documentary  proof.''    (See  §  34.) 

•  McKenney  v.  Waite,  7  Sliep.  s  Freeman  v.  Arkell,  3  B.  &  C. 

349.  494. 

2  Reed  s.Vancleve,  3  Dutch.  352.  e  Hewlett  v.  Cock,  7  Wend.  371. 

3  Charlton  ».  Unis,  4  Gratt.  58.  '  Norris  v.  Badger,  6  Cow.  449 ; 
^  Willard    ■».    Goodenough,    30  Preston  v.  Ilarvey,  3  Hen.  &  M.  55. 

Verm.  393. 


424  THE   LAW    OP   NEW    TRIALS.  [CH.  XIII. 

So  where  a  printed  statute  book  was  admitted  in  evidence 
of  a  private  act,  but,  on  the  argument  of  the  motion  for 
a  new  trial,  the  book  was  shown  to  be  correct  by  pro- 
ducing an  exemplification  of  the  act.^  So  a  verdict  will 
not  be  set  aside,  on  account  of  the  admission  of  merely 
introductory  evidence.^  But  a  verdict  will  not  be  set 
aside  for  rejection  of  parol  evidence  of  the  contents  of  a 
letter,  because  no  satisfactory  proof  was  first  furnished  to 
the  court,  which  is  usually  done  by  the  party's  own  afia- 
davit  of  the  loss  of  such  letter,  or  its  having  come  to  the 
possession  of  the  opposite  party. ^ 

§  33.  After  testimony  tending  to  prove  the  loss  of  a 
registered  deed,  a  party  was  allowed  to  read  an  attested 
copy  in  evidence,  with  the  condition  that  he  should,  in 
the  course  of  the  trial,  file  an  affidavit  of  the  loss  of  the 
original.  Held,  after  verdict,  that  the  filing  of  the  affi- 
davit must  be  presumed  to  have  been  waived  by  the  other 
party .^  So  where  there  was  a  written  admission  of  the 
"  execution"  of  a  certain  deed,  purporting  to  be  by  the 
attorneys  of  record  of  both  parties,  and  the  deed  was  ad- 
mitted in  evidence  at  an  ex  parte  trial,  without  proving 
the  signatures  of  the  attorneys ;  it  was  held  no  cause  for 
new  trial.* 

§  34.  Questions  often  arise,  in  reference  to  evidence  in 
itself  incompetent,  but  claimed  to  be  admissible  in  con- 
nection with  other  testimony.^  It  is  sometimes  held,  that 
a  new  trial  shall  not  bo  granted,  for  rejection  of  evidence 
incompetent  ichen  offered.'' (a) 

'  Duncan  v.    Duboys,   3   John.        *  H.andloy  v.  Call,  80  Maine,  9. 
Cas.  125.  s  Strippelmann  v.  Clark,  11  Tex. 

2  Swaniscot     Machine     Co.    v.     29G. 

Walker,  2  Fost.  457.  ^  See  Morgan  d.  Jones,  24  Geo. 

3  Allen  V.  Blunt,  2  Woodb.  &  M.     155. 

121.  '  Jones  v.  Lake,  2  Wis.  310. 

(a)  If  a  defendant  sets  up  his  right  as  assignee  of  a  bond,  he  may  in- 
troduce the  bond  in  evidence  before  lie  shows  his  title  and  interest  in  it. 


CH.  XIII.]      ADMISSION  OR   REJECTION   OF   EVIDENCE.  425 

§  35.  And  where  evidence  is  rejected  as  irrelevant,  but 
becomes  competent  by  the  subsequent  course  of  the  trial, 
it  is  still  to  be  excluded,  unless  re-ofFered,  although  not 
objected  to  in  the  argument.^  And  when  a  party  offers 
evidence,  which  is  prima  facie  illegal  as  well  as  irrelevant, 
it  is  not  sufficient  for  him  to  state  to  the  court  "  that  he 
could  probably,  by  other  evidence,  so  connect  the  de- 
fendant with  it  as  to  make  it  competent  evidence. "^(a) 

§  36.  But  in  general  a  new  trial  will  not  bo  granted, 
because  evidence  was  admitted  with  reference  to  a  future 
state  of  the  case.^  "Nov  where  incompetent  evidence  is 
received,  upon  the  ground  that  other  evidence  will  be 
oflered  by  which  the  former  will  be  made  competent,  and 
after  the  latter  testimony  the  objection  is  not  renewed.^ 
So  if  evidence  is  admitted,  which  can  only  become  com- 
petent by  the  introduction  of  other  evidence ;  no  exception 
lies,  unless  it  clearly  appears  that  such  further  evidence 
was  not  introduced.^ 


'  Melcher     v.    Merryman,      41        *  Scott  v.  Newsom,  27  Geo.  125. 
Maine,  COl.  ^  Props.,  &c.  v.  Prescott,  4  Al- 

2  Shields  v.  Henry,  31  Ala.  53.       len,  22. 

3  Harris  v.  Holmes,   30  Verm. 
352. 


Van  Orman  v.  SpafiFord,  16  Iowa,  186.  The  assignment  of  a  contract, 
when  set  up  as  a  defence,  may  be  proved,  before  it  is  shown  that  the 
plaintiff  had  notice  of  it.  Doll  v.  Anderson,  27  Cal.  248.  In  ejectment 
for  unseated  lands  sold  for  taxes  and  bought  by  the  county  commission- 
ers, the  defendant  may  prove  his  redemption  of  the  land  by  the  consent 
of  the  commissioners,  although  the  conveyance  from  them  to  him  had 
not  been  previously  introduced.  Philadelphia  v.  Miller,  49  Penn.  440. 
If  the  plaintiff  omits  to  prove  an  essential  fact,  and  the  defendant  sup- 
plies the  proof,  the  plaintiff  may  avail  himself  of  it.  Deshler  v.  Beers, 
32  111.  368. 

(a)  After  a  prima  facte  case  of  execution  of  a  contract,  the  court 
should  not  allow  counter  proof  before  the  instrument  is  read.  Verzan  v. 
McGregor,  23  Cal.  339.  If  a  decision  excluding  testimony  is  correct,  it 
cannot  be  made  erroneous  by  any  subsequent  testimony.  Depuy  v.  AYil- 
liams,  26  Cal.  309. 


426  THE    LAW    OF   NEW    TRIALS.  [CH.  XIII. 

§  37.  A  new  trial  will  not  be  granted  for  the  admission 
of  incompetent  facts,  afterwards  proved  by  the  party 
objectino;.^  Error,  in  admitting  irrelevant  testimony,  is 
cured  by  the  introduction  of  testimony  on  the  other  side, 
making  the  former  testimony  proper.  As  whore  the  de- 
fendant moves  for  a  nonsuit,  and  liis  motion  is  improperly 
overruled,  and  he  himself  then  introduces  evidence  con- 
ducing to  prove  a  cause  of  action.^  So  although  the  decla- 
rations of  a  witness  can  only  be  received  to  impeach  him, 
by  contradicting  testimony  already  given  by  him ;  yet,  if 
they  are  admitted  first,  the  error  is  cured,  if  the  party 
who  objected  to  the  declarations  calls  him  and  examines 
him  with  relation  thereto.^ 

§  38.  Evidence  claimed  to  be  competent  upon  further 
proof,  which  proof  is  not  oft'ered,  should  be  struck  out.* 
Thus,  although  it  is  no  ground  of  objection  to  the  intro- 
duction of  a  deed  as  evidence,  that  there  is  a  latent  am- 
biguity in  it  susceptible  of  explanation ;  yet,  if  it  be  not 
explained  and  rendered  certain  by  other  evidence,  the 
deed  should  be  excluded,  on  motion,  for  want  of  certainty, 
and  of  identity  of  the  land,  referred  to  in  it,  with  the 
premises  sued  for.' 

§  39.  A  new  trial  will  not  be  granted  for  rejecting  in- 
competent evidence,  although  the  reasons  assigned  for 
such  rejection  are  insufficient.^(rt) 

'  Grimm  v.  TTamol,  2  Hilt.  434.  «  Dillin  v.  The  People,  8  Mich. 

2  liuckcr  V.  Hamilton,  3  Dana,      357. 

36.  5  iianna  v.  Renfro,  32  Miss.  125. 

3  Tooker  v.  Gormer,  2  Uilt.  71.  "  Ludlow's,  &c.v.  Parke,  4Ham. 

39. 


(a)  The  admission  of  evidence,  which  is  inadmissible  when  olTered,  may 
be  cured  by  the  subsefjucnt  introduction  of  testimony  showing  its  com- 
petency. Bell  V.  Chambers,  38  Ala.  660.  Where  a  certified  copy  of  a 
deed  of  assignment  has  been  admitted  as  secondary  evidence,  and  the 
original  is  afterward  found,  the  court  has  discretion  to  allow  the  original 
to  be  put  iu  evidence  m  place  of  the  copy,  after  the  opening  of  the  case 


CE.  XIII.]      ADMISSION   OR   REJECTION   OF   EVIDENCE.  427 

§  40.  It  is  sometimes  held,  that  in  case  of  trial  6y  the 
court  strict  rules  of  evidence  will  not  be  enforced.^     This, 


'  Smith  B.  Hughes,  23  Tex.  248. 

of  the  adverse  party.  Blake  v.  Sawin,  10  Allen,  .3 10.  In  a  suit  against 
a  partnership  for  debt,  the  defence  was,  that  the  firm  name  had  been 
signed  by  one  partner  without  authority,  after  dissolution.  Held,  there 
was  no  error  in  admitting  the  paper  so  signed,  "  subject  to  the  proof  to 
be  given  hereafter,"  when  it  was  subsequently  proved  that  the  agree- 
ment was  ratified  by  the  other  partner.  Kelly  v.  Crawford,  5  Wall.  785. 
Where  improper  testimony  is  admitted  under  objections,  a  new  trial  will 
be  granted,  unless  it  clearly  appears  that  the  other  evidence  was  such, 
that,  if  the  jury  had  found  for  the  objecting  party,  the  court  would  have 
set  aside  the  verdict  as  contrary  to  the  facts,  or  that  the  testimony  could 
not  have  possibly  influenced  the  jury.  Jaeger  v.  Kelley,  7  Rob.  586. 
A  new  trial  will  be  granted  for  erroneous  exclusion  of  evidence,  by  which 
a  party  was  deprived  of  the  more  simple  and  direct  mode  of  establishing 
his  claim,  and  compelled  to  resort  to  one  more  indirect,  complex,  and 
difiScult,  although  the  excluded  evidence  was  subsequently  admitted. 
Woodman  v.  Dana,  52  Maine,  9.  Where  the  court  improperly  rejects 
the  testimony  of  a  witness  offered  by  the  defendant,  in  a  trial  for  murder, 
to  prove  the  testimony  of  a  witness  at  a  former  trial  since  deceased,  and 
afterwards  gives  leave  to  introduce  such  evidence,  and  offers  to  give 
time  to  send  for  the  witness,  or  to  allow  the  minutes  taken  of  the  evi- 
dence at  the  former  trial  to  be  read  to  the  jury,  and  such  minutes  are  so 
read;  a  new  trial  will  not  be  granted.  People  v.  Henderson,  28  Cal. 465. 
An  office-copy  of  a  deed,  produced  by  the  plaintiff,  and  not  in  his  claim 
of  title,  though  not  perhaps  competent  at  the  time,  yet,  if  admitted,  will 
be  afterwards  made  competent  by  the  defendant's  offer  of  a  subsequent 
deed,  bringing  the  first  within  the  claim  of  his  title ;  and  the  verdict  will 
not  be  set  aside  on  account  of  the  admission  of  the  copy.  Lyford  v. 
Thurston,  16  N.  H.  399.  Where  incompetent  testimony  is  admitted,  but 
is  afterwards  made  competent  by  the  iutroductiou  of  other  evidence  ;  the 
verdict  will  not  be  set  aside,  though  such  testimony  was  admitted  on 
eiToueous  grounds,  and  without  any  anticipation  of  its  being  afterwards 
made  competent  by  other  evidence.  Eastman  v.  Amoskeag,  44  N.  H. 
143.  The  admission  of  incompetent  evidence,  to  prove  facts,  which  were 
proved  by  other  evidence,  furnishes  no  ground  for  a  new  trial.  Doane  v. 
Baker.  G  Allen,  260  ;  Hollinshead  v.  Nauman,  45  Penn.  140.  As  where 
hearsay  evidence  was  admitted  to  prove  a  fact  otherwise  abundantly 
proved,  and  by  the  excepting  party's  own  witnesses.  Dcsverges  v.  Des- 
verges.  31  Geo.  753.    In  an  action  for  work  and  labor  against  two  as 


428  THE    LAW    OF   NEW    TRIALS.  [CH.  XIII. 

however,  is  not  the  prevailing  rule.  Thus  where  it  is 
ao-reed  that  the  court  may  decide  on  the  undisputed  facts, 
and  evidence  has  been  erroneously  excluded  and  exception 
taken,  the  court  above  will  order  a  new  trial. ^  So,  in  an 
insurance  case,  judgment  for  the  plaintiff  was  reversed, 
because  the  evidence  admitted  to  prove  the  preliminary 
proof  of  loss  was  inadmissible.^  And  it  seems  a  new  trial 
may  be  had  for  admission  of  illegal  testimony,  upon  a 
hearing  in  damages,  in  open  court,  whether  before  a  jury 
or  a  judge.2  So  a  new  trial  was  granted,  where  the  ques- 
tion whether  a  defendant,  making  confessions  of  guilt, 
was  too  much  intoxicated  to  understand  them,  was  sub- 
mitted to  the  court  as  preliminary  to  the  admission  of 
a  witness  to  the  confessions,  and  decided  upon  his  testi- 
mony alone,  rejecting  evidence  of  intoxication  shortly 
before  and  after  the  confession.*  So  a  new  trial  may  be 
granted,  for  the  improper  admission  or  rejection  of  evi- 
dence, upon  a  writ  of  inquiry  of  damages  by  the  sheriff.^ 
As  where,  in  an  action  of  trespass,  the  defendants  were 
defaulted,  but,  upon  the  inquest  before  the  sheriff  and  a 
jury,  were  allowed  to  introduce  evidence  to  show  that  no 
trespass  had  been  committed.  The  jury  found  nominal 
damages.  A  new  trial  was  ordered,  upon  the  ground 
that  the  admission  of  such  evidence  after  default  would 

'  Hopkins  v.  Forsyth,  14  Penn.        "  Begg  v.  Whittier,  48  Maine, 
34.  314  ;  Storer  v.  White,  7  IMass.  448. 

2  Spring,  &c.  v.  Evans,  15  Md.        ^  Com.  v.  Howe,  9  Gray,  110. 
54  5  Tutton  v.  Andrews,    Barnes, 

448. 

joint  contractors,  the  book  of  original  entries  of  the  plaintiff,  charging 
them  jointly,  is  admissible  in  evidence,  though  not  preceded  by  evidence 
of  joint  liability,  if  such  evidence  is  subsequently  introduced.  Bowers 
V.  Still,  49  Penn.  65.  An  assurance  by  counsel,  that  evidence  offered 
would  be  followed  up  by  proof  of  other  circumstances  and  facts  material 
and  competent,  with  which  it  would  have  an  important  connection,  ren- 
ders its  admission  proper.  If,  however,  this  assurance  is  not  fulfilled,  it 
would  be  the  duty  of  the  court,  upon  application  of  counsel,  to  direct  the 
jury  not  to  regard  it.     Blackburn  v.  Bcall,  21  Md.  208. 


CH.  XIII.]      ADMISSION   OR    REJECTION   OF    EVIDENCE.  429 

deprive  the  plaintiff  of  the  privilege  of   notice  of  the 
defence.^ 

§  41.  But  a  new  trial  has  been  refused,  upon  the  ground 
of  such  an  error  occurring  in  the  interlocutory  proceedings 
of  a  cause.  Thus  a  witness  for  the  plaintiff  was  objected 
to  as  interested.  A  question,  proposed  to  a  witness  who 
was  called  to  prove  his  interest,  was  objected  to,  but 
allowed,  and  the  witness  objected  to  was  permitted  to  tes- 
tify, the  judge  stating  that  his  credibility  was  for  the 
jury ;  and  the  verdict  was  for  the  defendant.  Held,  the 
permission  of  the  question  objected  to  was  no  ground  of 
new  trial .^  So  the  admission  of  evidence,  to  contradict 
testimony  upon  a  matter  collateral  to  the  issue,  and  drawn 
out  on  cross-examination,  although  illegal,  is  not  cause  for 
srantino;  a  new  trial.^ 

§  42.  The  admission  of  evidence,  to  contradict  other 
incompetent  and  illegal  evidence,  is  no  ground  of  new 
trial.  Thus  A.,  an  inhabitant  of  the  town  of  C,  on  the 
27th  of  April,  1851,  went  with  his  horse  and  trunks  to 
the  house  of  B.  in  the  town  of  L.,  and  B.  agreed  to  board 
him  and  keep  his  horse.  In  an  action  brought  by  A.  to 
recover  back  a  tax  assessed  on  him  in  C.  on  the  1st  of 
May  ensuing,  it  was  held  that,  for  the  purpose  of  showing 
that  he  had  changed  his  domicile  before  that  day,  evidence 
was  admissible  of  his  declarations  made  to  B.  at  L.  in 
February  preceding,  during  a  negotiation  about  coming 
to  board  with  B.,  that  he  intended  to  come  and  live  with 
B.  in  April,  and  not  return  to  C. ;  and  also  of  the  fact, 
that  A.  was  chosen  and  served  as  surveyor  of  highways 
in  L.,  in  1853,  after  the  action  was  brought.  The  pre- 
siding judge  having  refused  to  allow  one  of  the  assessors 
of  C,  called  as  a  witness  by  A.,  to  testify  that  A.,  in 
April,  1851,  gave  him  notice  that  he  was  going  to  remove 

1  Foster  v.  Smith,  10  Wend.  377.        ^  Page  v.  Homaus,  3  Slicp.  478. 

2  Ackley  v.  Kellogg,  8  Cow.  323. 


430  THE    LAW    OF    NEW    TRIALS.  [CIL  XI I L 

from  C.  before  the  1st  of  May,  but  having  allowed  him  to 
testify  on  cross-examination,  that  he  did  not  at  a  particular 
interview  acknowledge  to  A.  that  he  had  given  him  such 
notice ;  it  was  held  that  this  rejection  and  admission  of 
evidence  were  both  erroneous,  and  that  the  subsequent 
admission  of  evidence,  to  contradict  the  testimony  of  the 
assessor  as  to  his  own  acknowledgment  to  A.,  w^as  no 
ground  for  setting  aside  a  verdict  for  the  plaintiff.  The 
court  remark:  "Evidence  was  inadvertently  admitted, 
upon  both  sides,  upon  a  matter  unimportant  and  imma- 
terial to  the  issue.  We  cannot  disturb  the  verdict  on  this 
ground.     The  one  error  neutralizes  the  other."^ 

§  43.    The  admissil)ility  of  evidence   is  of   course  to 
some  extent  dependent  on  the  2-)leadings.{a) 

'  Cole  v.  Cheshire,  1  Gray,  441,  446. 


(ft)  If  a  complaint,  in  an  action  for  upsetting  the  plaintiff's  carriage, 
does  not  allege,  directly  or  impliedly,  the  defendant  to  have  been  the 
cause  of  the  accident ;  a  verdict  against  hira  will  be  set  aside.  Lee  v. 
Emery,  10  Min.  187.  So,  where  a  complaint  contained  two  causes  of 
action  for  distinct  libel,  and  erroneous  evidence  in  support  of  one  was 
admitted;  a  general  verdict  for  damages,  the  record  showing  no  means 
of  apportionment.  Simmons  v.  Holster,  13  Min.  249.  The  insufficiency 
of  the  declaration  is  uo  ground  of  objection  to  the  admissibility  of  evi- 
dence offered  in  support  of  it.  Morehouse  v.  Northrop,  33  Coun.  380. 
In  an  action  by  a  town  against  its  treasurer  for  money  had  and  received, 
after  the  counsel  for  the  town  had  offered  to  allow  him  to  prove  any  sums 
paid  by  liim  and  not  credited  on  the  books  of  the  town;  evidence  of  such 
a  payment  by  him  before  the  bringing  of  the  action  cannot  be  rejected, 
because  not  specified  in  his  answer.  Adams  v.  Farnsworth,  15  Gray, 
423.  When  a  case  has  been  tried  before  a  referee,  without  any  (piestioa 
whether  the  facts  proved  were  within  the  pleadings;  it  is  too  late,  after 
tlie  decision,  to  raise  an  objection  that  the  evidence  was  not  warranted 
by  the  pleadings,  provided  it  was  otherwise  competent.  Commercial 
Bank  v.  Shuart,  46  Harb.  371.  The  admission  of  incompetent  testi- 
mony to  prove  a  fact  not  in  issue  furnishes  no  ground  for  a  new  trial. 
Union  Water  Co.  v.  Crary,  2.")  Cal.  .'304.  In  Louisiana,  where  the  alle- 
o-ations  of  the  petition  are  insufficient  to  admit  proof  of  agency,  with 
the  right  of  the  agent  to  stand  in  judgment  and  receive  citation  for  his 


CH.  XIII.]      ADMISSION   OR   REJECTION   OF   EVIDENCE.  431 

§  44.  A  new  trial  will  bo  granted,  for  the  rejection  of 
evidence  applicable  to  any  one  count  of  the  declaration ; 
as  where  the  defendant  otfered  evidence  in  defence  against 
one  count  only.^  But,  in  trespass,  where  not  guilty  and 
a  justification  are  pleaded,  and  the  jury  find  the  first  issue 
for  the  defendant ;  the  rejection  of  admissible  testimony 
pertinent  to  the  latter  only  is  not  ground  for  a  new  trial.^ 
So  evidence  ottered  in  terms  for  a  special  purpose  may  be 
rejected,  if  that  purpose  be  inadmissible  under  the  plead- 
ings, though  it  might  be  admissible  for  other  purposes.^ 
(See  §  24.) 

§  45.  Where  the  ground  of  defence  does  not  appear  by 
the  pleadings,  an  unrecorded  deed  may  be  put  in  by  the 
plaintiif  in  his  opening,  its  efltect  to  depend  upon  the 
situation  of  the  defendants  as  proved — whether  purcha- 
sers without  notice,  &c.^ 

§  46.  In  an  action  of  assumpsit  on  the  common  count 
for  labor,  a  defendant  has  no  right  to  arrest  the  plaintiff 
in  the  course  of  making  out  his  case,  by  an  offer  to  show 
that  the  work  was  done  under  a  special  contract,  it  not 
having  appeared,  from  anything  proved  by  the  plaintift", 
that  there  was  any  such  contract.^ 


'  Middlesex,  &c.,  v.  McGregore,  *  Wiggins  v.  Holley,  11  Ind.  2. 

3  Mass.  124.  s  Baltimore,    &c.    v.    Polly,    14 

2  Pierce  v.  Myrick,  1  Dev.  345.  Gratt.  447 ;  Same  v.  LafFertys,  ib. 

3  McTavish  v.  Carroll,  13  Md.  478. 
439. 


principal,  the  case  will  be  remanded  for  a  new  trial.  Aldige  v.  Knox.  16 
La.  An.  180.  Where  the  plaintiff's  pleadings  did  not  deny  the  validity 
of  the  deeds  relied  on  by  the  defendant,  and  yet  the  court  below  permit- 
ted the  plaintiff  to  introduce  evidence  impeaching  them,  and  a  verdict 
was  returned  against  him;  the  Supreme  Court  refused  to  disturb  the 
finding,  although  the  conveyances  were  not  without  suspicious  circum- 
stances.    Good  V.  Coombs,  28  Tex.  34. 


432  THE   LAW    OF   NEW    TRIALS.  [CH.  XIII. 

§  47.  It  is  no  ground  of  new  trial,  in  an  action  upon  a 
note,  there  being  no  general  denial,  nor  denial  either  of 
the  execution  of  the  note  or  its  transfer  to  the  plaintiff; 
that  the  note  was  not  read,  or  offered  to  the  defendant's 
inspection,  before  argument.^ 

§  48.  The  rejection  of  testimony  tending  to  prove  a  fact, 
which  fact  is  assumed  by  the  court  as  being  proved,  is  not 
error.^ 

§  49.  The  general  rule  is,  that  facts  alone  are  to  be 
testified  to. 

§  50.  The  statement  of  a  witness  that  in  his  opinion 
certain  foot-marks  were  those  of  the  prisoner,  assigning 
as  a  reason  for  such  opinion  that  he  had  often  seen  and 
noticed  the  prisoner's  tracks  as  being  of  a  peculiar  cha- 
racter, is  not  evidence,  the  admission  of  which  is  sufficient 
ground  for  a  new  trial.' 

§  51.  If  a  witness  swears  in  a  capital  case  to  the  i7iiention 
with  which  a  party  acted,  and  the  effect  of  such  testimony 
is  adverse  to  the  accused,  a  new  trial  will  be  awarded.^ 

§  52.  If  the  verdict  can  be  sustained  by  the  evidence  in 
the  cause,  it  is  a  matter  of  indifference  by  which  party  it 
is  introduccd.^(a) 

§  53.  Evidence  must  be  regularly  offered,  or  put  into 
the  case,  to  justify  its  rejection  as  ground  of  new  trial. 

'  Cocks  V.  Hart,  18  Tex.  554.  ^  Hester  v.  State,  17  Geo.  130. 

2  Thompson  v.  Morris,  5  Jones,        »  Burens  v.  State,  G  Eng.  455. 

151.  5  Oakes  v.  Thornton,  8  Fost.  44. 


(a)  One  party  eliciting  in  cross-examination  statements  made  by  the 
other  upon  an  alleged  compromise  cannot  exclude  them  from  the  jury. 
Smith  V.  Oldham,  26  Tex.  533. 


CH.  XIII.]      ADMISSION   OR   REJECTION   OF   EVIDENCE.  433 

Thus,  where  a  party  proved  the  execution  of  a  note,  and 
the  indorsements  upon  it,  as  collateral  evidence,  and  laid 
the  note  upon  the  table,  without  reading  it  to  the  jury  or 
giving  notice  to  the  court  that  it  was  put  into  the  case ; 
held  no  ground  of  new  trial  for  surprise,  that  the  court, 
after  the  argument  had  commenced,  refused  to  allow  the 
party  to  comment  upon  or  to  use  the  note  as  evidence.^ 
But,  where,  on  the  other  hand,  a  jury,  after  retiring,  re- 
turned into  court,  on  some  misunderstanding  as  to  the 
testimony  of  a  witness ;  and  the  court  then  recalled  the 
witness  and  interrogated  him  as  to  points  not  embraced 
in  his  previous  examination,  no  objection  being  made: 
held,  no  ground  for  new  trial.^(«) 

§  54.  A  new  trial  will  not  be  granted,  for  the  admission 
of  evidence  not  objected  to.\b) 

•  Haskins  v.  Smith,    17  Verm.  Gelhaar  v.  Ross,  1  Hilt,  117;  Haynes 

263.  V.  Hay  ward,  41  Maine,  488;  Brown 

2  Hawtliornew. Bowman, 3  Sneed,  v.  Moran,  42  ib.  44;  McKay  ®.  Larr, 
524.  5  Flori.  268;  King  v.  State,  21  Geo. 

3  Brown   v.  Robinson,  25  Geo.  220. 
144 ;  Parke  v.  Foster,  26  ib.  465 ; 

(a)  If  an  offer  of  evidence  contains  any  matter  not  admissible,  it  is 
held  that  the  whole  may  be  rejected.  Hosley  v.  Black,  28  N.  Y.  (1  Tiff.) 
438.  Contra,  Driscoll  v.  Damp,  16  Wis.  106.  A  general  offer,  by  the 
counsel  for  two  defendants,  "  to  call  A.,  one  of  the  two,  as  a  witness,"  was 
not  an  offer  made  in  behalf  of  both,  but  an  offer  to  examine  him  as  to 
matters  in  which  B.  was  alone  interested.  "Wilson  v.  Elwood,  28  N.  Y. 
(1  Tiff)  117. 

(&)  The  rule  applies  only  to  the  question  whether  the  evidence  is  ad- 
missible, and  not  to  its  weight,  or  to  matters  tending  to  overthrow,  con- 
tradict, or  invalidate  it.  Roberts  v.  Chan,  23  Cal.  259.  It  is  held  that, 
where  a  party  makes  no  objection  to  evidence  at  the  time  it  is  offered,  he 
may  still  object  before  the  cause  has  been  submitted  to  the  jury.  The 
matter  rests  in  the  discretion  of  the  court;  and,  where  evidence  was  ob- 
jected to  upon  incorrect  grounds  when  offered,  a  request  for  a  charge  to 
the  jury,  excluding  the  evidence  upon  correct  grounds,  was  held  to  have 
been  properly  granted,  it  appearing  that  the  opposite  party  was  not  pre- 
judiced by  the  delay.  Russell  v.  Schurmier,  9  Miu.  28.  An  objection 
to  evidence,  that  it  is  inadmissible,  without  specifying  the  reason,  should 
28 


434  THE   LAW    OF   NEW    TRIALS.  [CII.  XIII. 

§  55.  A  gen-eral  objection,  without  a  statement  of  the 
ground,  is  to  be  understood  as  an  objection  to  the  compe- 
te disregarded.  Lect  v.  Wilson,  24  Cal.  398.  Thus  an  objection  to  the 
admission  of  a  prisoner's  confession.  State  v.  Brooks,  1  Vrooni,  356. 
So  a  general  objection  to  evidence  which  is  admissible  in  part.  State  v. 
Alford,  31  Conn.  40  ;  Colvin  v.  Warlord,  20  Md.  357  ;  Murphy  v.  State, 
1  Ala.  (N.  S.)  48  ;  McGill  v.  Monette,  ib.  285  ;  Wood  v.  Barker,  ib.  311 ; 
Webb  V.  Kelly,  ib.  349  ;  Sterrett  v.  Raster,  ib.  404 ;  Bissel  v.  Beckwith, 
32  Conn.  509 ;  Oelrichs  v.  Ford,  21  Md.  489 ;  Folk  v.  Wilson,  ib.  538 ; 
McGill  V.  Monette,  37  Ala.  49;  Wood  v.  Barker,  ib.  60;  Murphy  v. 
State,  ib.  142 ;  Webb  v.  Kelly,  ib.  333 ;  Sterrett's  Ex'r  v.  Kaster,  ib. 
366;  Sneed  v.  Osborn,  25  Cal.  619;  Newsom  v.  Huey,  36  Ala.  37.  Or 
to  secondary  evidence.  Gelpecke  v.  Lovell,  18  Iowa,  17.  Or  an  objec- 
tion to  a  question  which  calls  for  the  opinion  of  a  witness,  for  the  reason 
that  he  has  not  been  shown  competent  as  an  expert.  Mallory  v.  Perkins, 
9  Bosw.  572.  A  general  objection  to  the  admission  of  testimony  may  be 
overruled  when  any  part  of  it  is  admissible.  Newsom  v.  Huey,  36  Ala. 
37.  An  objection  to  a  question  to  a  witness  does  not  lie,  which  assumes 
a  disputed  fact.  Adams  v.  Capron,  21  Md.  186.  Where  the  plaintiff, 
while  testifying,  produced  his  deceased  father's  rent-book,  upon  the 
request  of  the  defendant's  counsel ;  held,  the  mere  inspection  of  the 
book  by  the  counsel  did  not  make  it  evidence  for  the  plaintiff.  Austin  v. 
Thomson,  45  N.  H.  113.  Where  a  witness  was  asked  several  questions 
pertaining  to  the  same  point  in  immediate  succession,  and  an  objection 
to  the  first,  which  was  merely  preliminary,  was  improperly  overruled,  and 
exception  taken ;  held,  the  objection  applied  to  the  whole.  Barton  v. 
Kane,  17  Wis.  37.  If  an  objection  is  made  to  a  2>roper  preliminary  ques- 
tion, and  overruled,  and  the  witness,  instead  of  making  a  direct  answer, 
gives  in  reply  incompetent  testimony ;  the  court  need  not  strike  out  such 
evidence,  except  upon  motion  or  further  objection.  Fox  v.  Fox,  25  Cal. 
587.  The  admission  of  various  papers  filed  in  a  case  in  insolvency,  which 
are  read  as  part  of  the  record  of  the  case,  in  order  to  contradict  material 
testimony  of  the  debtor  as  a  witness,  is  no  ground  for  a  new  trial,  if  the 
bill  of  exceptions  docs  not  show  the  nature  of  the  objection  made  thereto. 
Cox  V.  Jackson,  6  Allen,  108.  If  a  person  whose  settlement  is  in  dis- 
pute is  proved  to  have  removed  from  town  A.  to  B.,  a  new  trial  will  not 
be  granted  on  account  of  the  admission  of  evidence,  for  the  purpose 
of  proving  his  domicile  in  B.,  that  he  came  to  B.  and  said  that  he  had 
sold  out  at  A.,  and  had  come  down  and  wanted  to  go  to  work;  if  no  spe- 
cial request  was  made  for  an  instruction  that  his  declaration  was  not  of 
itself  competent  evidence  of  his  selling  out.  Monson  v.  Palmer,  8  Allen, 
551.     Objections  to  evidence  must  be  made  at  the  time  it  is  ofi'ered,  and 


CH.  XIII.]      ADMISSION   OR   REJECTION   OF   EVIDENCE.  435 

tency  of  tlie  evidence,  and  not  as  one  taken  upon  some 
ground  which  might  have  been  obviated  at  the  trial.^ 
A  general  objection  to  evidence  is  insufficient,  when  it 
tends  to  mislead,  or  when,  if  the  special  point  had  been 
formally  presented,  it  might  have  been  met  and  obviated.^ 
Thus  a  ground  of  objection  to  the  form  of  a  question  must 
be  stated,  so  that  the  question  may  be  correctly  put.^  So 
it  is  not  error,  to  reject  evidence  of  what  was  sworn  to  by 
a  party  on  a  former  occasion,  unless  the  offer  set  forth  the 
evidence  proposed  to  be  given,  and  show  that  it  is  mate- 
rial to  the  issue.*  So  a  general  objection  to  a  paper  is 
unavailable,  unless  upon  its  face  clearly  inadmissible  or 
void.^  So  the  court  above  will  not  notice  a  special  objec- 
tion to  evidence,  which  was  objected  to  generally  in  the 
court  below.^ 

§  56,  A  new  trial  will  not  be  granted  for  the  rejection 
of  impeaching  evidence,  not  oifered  as  such.'  Or  the  ad- 
mission of  an  interested  witness  not  objected  to,^  Or  the 
admission  by  consent  of  secondary  evidence.'    And,  gene- 

'  State  V.  Flanders,  38  N.  H.  324.  *  Williams  «.  Williams,  34  Penn. 

See  Pool  V.  Devcrs,  30  Ala.  672.  312. 

2  Hayward  v.  Bath,  38  N.  H.  179;  ^  McDonald  v.  Bear,  &c.,  13  Cal. 
Pool  V.  Devers,  30  Ala.  672 ;  Swift  220. 

V.  Whitney,  Same  v.  Marsh,  20  111,  ^  People  v.  Glenn,  10  Cal.  32. 

144;  Jones  v.  Ransom,  3  Ind.  327  ;  ^  Hayward«.Duncklee,30  Verm. 

Mumford  v.  Thomas,  10  ib.  167 ;  29. 

Rash  V.  Whitney,  4  Mich.  495;  Ki-  «  Jackson  v.  Barron,  37  N.  H. 

ler  V.  Kimbal,  10  Cal.  267;  State  v.  494. 

Wilson,  8  Clarke,  407.  »  Norris  v.  Milner,  20  Geo.  563  ; 

3  Pearson  v.  Fiske,  2  Hilt.  146 ;  Goodwyn  v.  Goodwyn,  ib.  600. 
Tattersall  v.  Hass,  1  ib.  56 ;  Hunt 

V.  Hoboken,  &c.,  ib.  161. 


not  by  asking  instructions  to  the  jury  that  it  cannot  be  used.  State  v. 
Pratt,  20  Iowa,  267.  Where  a  motion  for  a  new  trial  merely  shows  that 
a  party  claimed  that  certain  evidence  was  not  admissible,  but  not  that 
the  claim  was  made  when  the  evidence  was  offered,  or  that  the  evidence 
was  let  in  subject  to  objection,  and  the  claim  was  subsequently  made  that 
it  should  be  excluded,  or  that  the  court  was  requested  to  charge  as  to  its 
effect  or  the  consideration  to  be  given  to  it ;  no  question  is  raised  which 
the  court  is  bound  to  consider.    Rathbone  v.  City,  31  Conn.  193. 


436  THE   LAW    OF   NEW    TRIALS.  [CH.  XIII. 

rally,  testimony  not  objected  to  is  to  have  the  same  eftect 
as  if  competent.^  So,  when  an  instrument  oft'ered  in  evi- 
dence is  not  objected  to,  an  indorsement  on  it  is  consid- 
ered as  proved.^ 

§  57.  Wliere  a  part  of  the  evidence  is  competent,  but  a 
general  objection  is  made ;  a  new  trial  will  not  be  granted.^ 
On  the  other  hand  a  general  oiFer  of  evidence,  a  part  of 
which  is  illegal,  may  be  rejected.'*    (See  §  22.) 

§  58.  It  is  no  ground  of  new  trial,  that  evidence  was 
admitted  which  was  incompetent  as  to  one  defendant, 
unless  objected  to  as  to  him  alone.^  In  such  case,  the 
other  defendant  should  move  for  proper  instructions  from 
the  court." 

§  59.  Upon  motion  for  new  trial,  on  the  ground  of  sur- 
prise in  the  exclusion  of  depositions,  the  affidavit  must 
state  the  testimony  contained  in  such  depositions,  or  its 
substance.^ 

§  60.  The  question  of  time  is  sometimes  material,  in 
reference  to  the  admission  or  exclusion  of  evidence.(«) 
Thus,  under  a  statute  limiting  the  time  of  prosecution 
for  an  offence,  if  evidence  of  the  commission  of  such 
offence  at  a  time  beyond  this  limit  is  admitted,  the  de- 
fendant is  entitled  to  a  new  trial.^  But,  although,  in 
general,  evidence  of  facts  occurring  after  the  commence- 
ment of  the  suit  is  inadmissible ;  if  such  evidence  was 

'  Atwell  V.  Grant,  11  Md.  101.  s  Black  v.  Foster,  28  Barb.  387. 

2  Bell  V.  Keefe,  12  La.  An.  340.         «  Goodman  v.  Walker,  30  Ala. 

3  Robinson  v.  Tipton,    31    Ala.     482. 

595  ;   Moore  v.  Lea,   32  ib.  375  ;        ?  Peers  v.  Davis,  29  Mis.  184. 
Ferry  v.  Parks,  11  Lid.  165.  «  State  v.  Gray,  39  Maine,  353. 

*  Jeans  v.  Lawler,  33  Ala.  340. 

(a)  A  new  trial  will  be  granted  for  the  admission  of  evidence  incom- 
petent at  the  time,  though  by  a  subsequent  law  made  competent.  Cory 
V.  Silcox,  5  Ind.  370. 


CH.  XIII.]      ADMISSION   OR   REJECTION   OF   EVIDENCE.  437 

admitted  and  the  facts  were  immaterial,  the  verdict  will 
not  be  set  aside  for  that  reason.^  So,  in  a  case  of  seduc- 
tion, where  evidence  was  admitted,  of  expenses  incurred 
subsequently  to  the  commencement  of  suit ;  a  new  trial 
was  refused,  upon  the  grounds  of  the  peculiar  nature  of 
the  action,  that  the  evidence  was  merely  in  aggravation 
of  damages,  the  action  itself  being  fully  maintained  other- 
wise, that  no  second  action  could  be  brought  for  the  dam- 
ages in  question,  and  that  apparently  the  evidence  had 
little  or  no  influence  on  the  verdict.^ 

§  61.  The  time  of  introducing  testimony  is  also  often  an 
important  question. («) 

§  62.  It  is  held  to  be  almost  a  matter  of  course  to  let 
in  new  evidence  for  the  plaintiff,  on  a  motion  for  a  non- 
suit.^ So  it  is  held,  that,  if  a  party  discover  material 
evidence  at  any  time  before  the  close  of  the  arguments, 
the  court  should  allow  it  to  be  introduced.*  So,  on  a  final 
trial  before  a  special  jury,  when  the  witness  is  in  court, 
and  each  side  is  to  be  heard  on  the  testimony ;  he  should  be 
heard,  though  the  arguments  have  commenced,  the  wit- 
ness having  been  absent  at  the  moment  when  called, 
through  an  excusable  mistake  of  his  own.®  More  espe- 
cially, a  party  has  no  right  to  complain  that  evidence  is 

'  School  District  v.  Bragdon,  3  "  McColgau  ■».  McKay,  25  Geo. 
Fost.  29.  631. 

2  Stiles  v.  Tilford,  10  Wend.  338.        "  Hook  v.  Stovall,  26  Geo.  704. 

^  Parker  v.  Johnson,  25  Geo,  576. 

(a)  It  is  of  no  consequence  in  what  order  evidence  is  introduced,  so 
far  as  its  ultimate  legitimacy  is  concerned,  provided,  in  its  relation  to  the 
other  evidence  in  the  case,  it  is  in  the  end  pertinent  to  the  issue.  Jetine 
V.  Joslyn,  41  Vt.  478.  Where  a  plaintiff  offers  a  deed  as  a  distinct  and 
sufficient  ground  of  his  title,  the  court  may,  upon  objection,  consider  the 
question  then  of  its  sufficiency  to  show  title,  and  may  properly  exclude 
it  if  it  shows  title  in  another  rather  than  in  the  plaintiff;  though  the 
regular  mode  would  be  to  admit  tlic  deed  in  evidence,  and  for  the  court 
afterwards  to  judge  of  its  sufficiency.     Davis  v.  Ilerndon,  39  Miss.  484. 


438  THE   LAW    OF   NEW    TRIALS.  [CU.  XIII. 

admitted  after  counsel  have  begun  to  address  the  jury, 
unless  he  is  less  prepared  to  meet  it  than  he  would  have 
been  at  an  earlier  stage  of  the  case.^  So  where  a  party 
asks  to  recall  a  witness  who  has  been  once  examined,  or 
to  call  a  person  referred  to  by  such  witness,  on  the  ground 
that  he  has  since  learned  that  he  could  thus  prove  a  ma- 
terial fiict,  which  he  did  not  know  of  before;  the  court 
ought  not,  on  a  mere  general  objection  by  the  other  side, 
to  refuse  the  application.  Thus,  with  the  examination  of 
a  witness  for  the  plaintiff,  who  swore  to  a  certain  conver- 
sation with  another  person,  the  testimony  closed,  and  the 
court  adjourned  till  the  next  morning.  On  the  opening 
of  the  court  the  next  day,  the  defendant  asked  to  be 
allowed  to  introduce  that  other  person  (who  was  not 
present  the  night  before),  as  a  witness,  to  prove  that  no 
such  conversation  took  place,  offering  to  make  affidavit 
that  he  did  not  anticipate  the  testimony  of  the  first- 
named  witness ;  and  it  was  held  that  leave  should  be 
granted.^ 

§  63.  A  new  trial  will  not  be  granted,  where  the  first 
objection  to  testimony  is  made  during  the  argument.^ 
Nor,  in  general,  if  the  interest  of  a  witness  is  not  ob- 
jected to  as  soon  as  known.* 

§  64.  But  it  is  also  held  that  a  new  trial  will  be  granted, 
though  testimony  was  not  objected  to,  if  its  incompetency 
bo  shown  by  subsequent  evidence.^  And  that  a  motion 
may  be  made  at  any  stage  of  the  trial  to  exclude  illegal 
evidence.^  That  irrelevant  testimony  may  be  excluded  at 
any  time  before  the  jury  retire,  though  not  previously 
objected  to.^ 

•  Russell  V.  KeaniPV,  27  Geo.  96.        ^  Andre  v.  Bodman,  13  Md.  241. 

2  Bone  V.  Inun-um,  27  Geo.  ;?82.  e  Pool  y.  Devers,  30  Ala.  672. 

3  Laurent  v.  'Vauij;lian,  30  Verm.  ^  Poarsall  v.  McCartney,  28  Ala. 
90.  110;  Creed  v.  White,  11  Humph. 

*  Sheridan  v.  Medara,  2  Stockt.  549. 
4G9  ;  Drake  v.  Foster,  28  Ala.  049. 


CH.  XIII.]      ADMISSION   OR   REJECTION   OF   EVIDENCE.  439 

§  65.  Where  parol  evidence  of  certain  regulations  is 
given,  and  it  appears  for  the  first  time  on  cross-examina- 
tion that  they  are  in  writing,  the  other  party  should  then 
move  to  strike  out  the  evidence.^  And  where,  on  cross- 
examination,  testimony  appeared  to  be  merely  hearsay,  it 
should  be  struck  out,  though  not  objected  to.^ 

§  QQ.  "Where  testimony  has  been  given  without  objec- 
tion, as  shown  by  the  bill  of  exceptions,  and  its  exclusion 
had  therefore  become  impossible,  the  jury  being  already 
in  possession  of  it ;  it  was  held  that  a  motion  to  exclude 
such  testimony  was  unmeaning  and  was  properly  over- 
ruled.3 

§  67.  A  new  trial  was  granted,  where  the  plaintift"'s 
attorney  testified  for  his  client,  and  it  was  afterwards  dis- 
covered that  he  had  previously  taken  an  assignment  of 
the  claim.  The  court  (Tindal,  J.)  remarking,  "  Such  con- 
duct in  an  attorney  is  happily  without  precedent ;  and  I 
hope  the  like  will  not  occur  again.  The  case  of  Turner 
V.  Pearte  only  decides  that  the  mere  incompetency  of  a 
witness  is  not  of  itself  a  sufficient  ground.  We  decide 
this  upon  the  ground  of  mala  praxis."\a) 

'  Kiler  v.  Kimbal,  10  Cal.  267.  *  Wade  v.  Simeon,  2  Man.  Gr.  & 

2  Parker  v.  Smith,  4  Cal.  105.         Sc,  343. 

3  State  V.  Rolifrisclit,  13  La.  An. 

382. 


(a)  If  improper  evidence  is  given,  tending  to  inflame  the  damages, 
and  is  not  struck  out  at  or  before  the  close  of  the  testimony,  so  that 
counsel  shall  not  be  allowed  to  refer  to  or  dwell  upon  it  in  their  address 
to  the  jury;  it  is  too  late  to  cure  the  mistake  by  directing  the  jury  to 
disregard  it  in  the  charge.  Pennsylvania  v.  Butler,  57  Penn.  335.  Where 
a  defendant  is  examined  as  a  witness,  without  objection,  respecting  mat- 
ters on  which  his  testimony  is  not  competent;  a  motion  at  the  close  of 
his  examination  to  strike  out  all  his  testimony  is  properly  denied,  since 
the  defendants  are  entitled  to  so  much  of  his  testimony  as  is  competent. 
Spaulding  v.  Hallenbeck,  35  N.  Y.  204.  The  court  need  not  interfere 
mero  motu  to  exclude  testimony,  otherwise  competent,  merely  because 


440  THE   LAW    OF   XEW    TRIALS.  [CII.  XIII. 

§  68.  A  new  trial  will  not  be  granted,  upon  the  ground 
that  testimony  was  excluded,  if  afterwards  received.^ 
More  especially  unless  the  rejection  prevents  some  cor- 
rection.2 

§  69.  It   is  ground  of  new  trial,  that   testimony  re- 


'  Robinson  v.  Fitchburg,  &c.,  7        ^  Stephens  v.  People,  19  N.  Y. 
Gray,  93.  (5  Smith)  549. 


the  preliminary  inquiry  has  not  been  made ;  and,  if  not  objected  to,  and 
the  testimony  has  been  received,  it  is  not  then  competent  for  the  court  to 
strike  it  out,  if  legal  in  form  and  pertinent  to  the  issue.  U.  S.  v.  Holmes, 
1  Cliff.  98.  If  the  testimony  of  a  witness  upon  re-examination  appears 
to  be  in  some  particulars  contradictory  to  that  given  by  him  at  his  first 
examination,  no  exception  lies  to  a  refusal  to  strike  out  his  testimony  as 
first  given,  but  it  is  a  question  of  fact,  upon  the  whole  of  the  witness's 
testimony,  whether  the  first  or  second  statement  is  correct.  Stockwell  v. 
Holmes,  33  N.  Y.  53.  A  motion  to  strike  out  irrelevant  testimony  may 
be  made  before  the  case  is  given  to  the  jury.  Pennsylvania  v.  Brady, 
14  Mich.  2G0.  A  new  trial  will  not  be  granted,  on  motion  of  the  defen- 
dant, because  one  of  the  plaintiff's  witnesses  was  examined  without  being 
sworn,  where  it  does  not  sufficiently  appear  that  the  defendant  himself 
and  his  attorney  were  ignorant  of  that  fact  before  a  verdict  was  returned. 
Riley  v.  Monohan,  26  Iowa,  507.  It  is  no  error,  to  allow  a  witness  to  be 
sworn  after  the  evidence  is  closed  on  ])oth  sides,  and  the  arguments  begun. 
Bigelow  V.  Young,  30  Geo.  121.  After  the  testimony  has  been  closed 
and  the  argument  commenced,  a  party  cannot  claim  as  a  right,  that  the 
testimony  of  interested  witnesses,  who  were  examined  without  objection, 
shall  be  excluded.  Newsom  v.  Huey,  36  Ala.  37.  After  testimony  has 
been  received  without  objection  on  the  part  of  the  defendant,  and  used 
and  commented  on  by  him  to  the  jury;  he  cannot  afterwards  ask  its 
withdrawal,  as  the  case  is  about  to  be  given  to  the  jury.  Mclnroy  v. 
Dyer,  47  Peun.  118.  In  an  action  which  involved  the  application  of  the 
law  of  Scotland  to  a  charter-party  executed  there,  a  motion  was  made, 
after  the  close  of  the  arguments,  to  discharge  the  agreed  statement  of 
facts,  so  far  as  to  allow  testimony  to  be  taken  to  prove  the  law  of  Scot- 
land as  a  fact  in  the  case.  Held,  as  there  was  no  suggestion  that  there 
is  any  statute  or  judicial  decision  applicable  to  the  question,  which  is 
not  already  accessible  to  the  court,  the  motion  must  be  denied.  Chase 
V.  Alliance,  9  Allen,  311. 


CH.  XIII.]      ADMISSION   OR   REJECTION  OF   EVIDENCE.  441 

jected  by  mistake  was  not  received  on  discovery  of  the 
mistake.' 


§  70.  A  motion  to  suppress  the  reading  of  a  deposition, 
on  the  ground  of  insufSciency  of  notice,  must  be  made 
when  it  is  offered  at  the  trial,  and  cannot  be  made  before 
trial. ^ 

§  71.  The  plaintiff  objected  to  a  deposition  offered  by 
the  defendant,  which,  the  magistrate  stated,  was  taken 
because  the  deponent  was  going  to  sea.  It  was  agreed 
that  the  deponent  did  not  go  on  the  voyage  contemplated, 
at  the  time  the  deposition  was  taken;  and  the  parties 
were  in  controversy  as  to  the  fact  whether  he  had  since 
gone  to  sea,  or  was  within  the  State;  but  the  court  re- 
fused to  postpone  the  trial  to  enable  the  defendant  to 
obtain  further  evidence  on  that  point,  and  rejected  the 
deposition.     Held,  no  ground  of  new  trial. ^ 

§  71a.  A  new  trial  will  not  be  granted,  because  a  depo- 
sition was  sent  to  the  jury  by  the  court,  at  their  request, 
where  the  court  instructed  the  jury,  that  parts  of  the 
deposition  which  had  been  ruled  out  were  no  evidence ; 
no  exception  having  been  taken  to  the  action  of  the  court 
at  the  trial,  and  it  not  appearing  that  the  evidence  ruled 
out  was  of  a  character  to  affect  the  minds  of  the  jury, 
even  had  they  read  it.\a) 

•  Goodwyn  v.  Goodwyn,  20  Geo.  ^  Larkin  v.  Avery,  23  Conn.  304. 
600  *  Foster  v.  McO'Bleuis,  18  Mis. 

2  Mills  V.  Dunlap,  3  Cal.  94.  88. 

(a)  "Wlien  a  default  is  opened,  on  condition  that  certain  depositions, 
irregularly  taken,  may  be  put  in  evidence  on  the  new  trial,  they  may  be 
introduced  in  evidence  in  all  subsequent  trials.  Waterson  v.  Seat,  10 
Flori.  326.  Under  St.  1  Wm.  4,  c.  22,  ?  10,  which  makes  a  deposition 
taken  under  it  inadmissible  at  msi  prius,  unless  it  appear  to  the  satis- 
faction of  the  judge  that  the  deponent  is  unable,  from  permanent  sick- 
ness, or  other  permanent  infirmity,  to  attend  ;  Hie  court  out  of  which  the 


4-i2  THE   LAW    OP   NEW    TRIALS.  [CII.  XIII. 

§  72.  The  improper  exclusion  of  a  sot-off  is  ground  of 
new  trial,  unless  the  plaintiff  will  allow  it  on  the  judg- 
ment.^ 

§  73.  In  !N'ew  York  a  new  trial  was  granted,  where, 
upon  a  question  as  to  the  competency  of  evidence,  the 
judge  directed  a  verdict,  subject  to  the  opinion  of  the 
court  at  a  general  term.  The  statute  prescribing  this 
course,  when  the  case  presents  questions  of  law,  applies 
only  to  cases  where,  the  facts  being  found  or  conceded,  it 
only  remains  to  pronounce  the  law.^ 

§  74.  In  the  same  State,  notwithstanding  a  statute  con- 
cerning "  questions  of  law  arising  on  reports  of  evidence ;" 
a  question  upon  the  admission  or  exclusion  of  testimony 
can  be  reserved  only  by  bill  of  exceptions.  Such  statute 
applies  only  to  questions  upon  the  evidence  admitted.^ 

§  75.  An  exception  to  the  rejection  of  testimony,  ob- 
jected to  by  the  opposite  party,  is  not  obviated  by  the 
waiver  of  the  objection  at  the  close  of  the  evidence,  in 
the  absence  of  the  witness,  who  does  not  return  until  the 
arguments  have  commenced.^ 

§  76.  It  is  held,  that,  where  the  court  erred  in  ruling 
out  testimony,  and  a  proposition  is  made  on  the  other 
side  to  waive  the  objection  and  admit  the  evidence,  which 
is  declined;  the  error  is  cured.''     But  it  is  also  held,  that, 

'  Harper  v.  Parker,  28  Geo.  257.        *  Foster  v.  Thompson,  5  Gray, 

2  Bell  V.  Shihley,  33  Barb.  610.  453. 

»  Palmer  v.  Pinkham,  37  Maine,        ^  Marshall  v.  Flinn,  4  Jones,  199; 

252  McBride  v.  Cicotte,  4  INIicb.  478. 


record  comes  may  review  the  judge's  decision,  but  will  not  do  so,  unless 
there  was  fraud,  or  injustice  has  resulted.  Duke  of  Beaufort  v.  Craw- 
shay,  Law  Rep.  1  C.  P.  699. 


CH.  XIII.]      ADxMISSION   OR  REJECTION   OP   EVIDENCE.  443 

if  the  court  refuse  to  permit  competent  testimony  to  go 
to  the  jury,  the  error  in  such  refusal  is  not  cured,  by  the 
consent  of  the  adverse  party  afterwards  to  go  into  the 
inquiry  proposed  by  the  rejected  evidence.^ 

•  Keynolds  v.  Tucker,  6  Ohio  (N.  S.),  51G. 


444 


THE    LAW    OF   NEW    TRIALS. 


[CII.  XIV. 


CHAPTER  XIV. 


VERDICT  AGAINST  EVIDENCE. 


4. 

7. 

8. 

fact. 


General  rule. 

Pleadiiif^s — variance. 

By  court  al}Ove. 

Additional  grounds. 

In  reference  to  a  particular 


9.  Limitations  of  the  rule  ;  the 
case  must  be  strong. 

12.  Deficiency  of  evidence. 

15.  Court  above. 

17.  Report  of  the  evidence. 

19.  Preponderance  of  evidence; 
weight  of  testimony;  credibility  of 
witnesses;  case  passed  upon  by  the 
jury;  improper  bias,  &c. 

27.  Absence  of  evidence. 

28.  Balance  of  testimony  ;  credit 
of  witnesses. 

31.  Number  and  relation  of  wit- 
nesses. 

36.  Misunderstanding  of  the  case. 

37.  Verdict  founded  upon  some 
evidence ;  upon  vague  and  suspi- 
cious evidence. 


40.  Verdict  for  the  defendant 
without  evidence. 

42.  For  the  plaintiff  without  evi- 
dence. 

44.  Or  against  clear  evidence  for 
the  defendant. 

45.  Circumstantial  evidence. 

50.  Evidence  by  inspection. 

51.  In  reference  to  language. 

52.  Successive  verdicts. 

57.  Demurrer  to  evidence. 

58.  Perverse  verdict. 

59.  In  what  classes  of  cases. 
GO.    Criminal  cases ;    penal  ac- 
tions ;  fraud. 

64.  Substantial  justice. 

65.  Trifling  cases. 

66.  No  benefit  to  the  party. 

67.  Trial  by  the  court ;  verdict 
by  consent ;  award. 

71.  Questions  of  law. 
75.  Verdict  satisfactory  or  other- 
wise to  the  judge. 


§  1.  A  VERDICT  may  be  set  aside,  as  being  against  evi- 
dence^ or  against  the  weight  of  evidence.\a)    More  especially 


'  Mumford  v.  Smith,  1  Caines, 
520;  Gordon  v.  Crooks,  11  111.  142; 
Lyle  V.  Rollins,  25  Cal.  437  ;  Mc- 
Carroll  v.  Stafford,  24  Ark.  224; 
Cox  V.  Hamilton,  21  Tex.  777 ; 
Branch  v.  Wilson,  12  Flori.  543  ; 
Willis  V.  Lewis,  28  Tex.  185;  Ohio 
V.  Schiebe,  44  111.  460  ;  Koesler  v. 


Esslinger,  ib.  476;  Gibson  v.  Web- 
ster, ib.  483 ;  Boudreau  v.  Bou- 
dreau,  45  ib.  480 ;  Slocomb  v.  Lur- 
ty,  1  Hemp.  431  ;  Long  v.  Lewis, 
16  Geo.  154  ;  Wilkinson  ■».  Payne, 
2  Salk.  646  ;  1  B.  &  P.  338  (called 
the  leading  case,  Graham,  398)  ; 
Wells  V.  Waterhouse,  9  Shep.  131  ; 


(a)  In  Illinois,  a  new  trial  will  be  granted  when  a  verdict  is  against 
evidence,  and  not  merely  against  the  weight  of  evidence.  Tillcy  v. 
Spalding,  44  111.  80.  In  New  York,  when  there  is  sufficient  evidence  to 
justify  the  decision,  but  the  material  fact  is  not  expressly  found,  and  the 


CH.  XIV.] 


VERDICT    AGAINST    EVIDENCE. 


445 


a  verdict  "entirely  without  evidence  to  support  it."^  Or 
having  nothing  to  support  it,  and  being  therefore  capri- 
cious.- Or  a  verdict  decidedly  and  strongly  against  the 
weight  of  evidence.'  Or  a  verdict  which  cannot  be  sus- 
tained upon  any  hypothesis  consistent  with  the  testi- 
mony.* Or  where  it  appears  that  the  jury  either  mistook 
the  evidence,  or  misunderstood  the  law  applicable  thereto.^ 
Or  (by  the  court  above)  where  the  record  discloses  no 
evidence  whatever  to  sustain  the  verdict.*'    Or  where  the 


Corlies  v.  Little,  2  Green,  373 ; 
Munn  V.  Gairduer,  8  Brev.  31  ; 
Hudson  V.  Williamson,  3  ib. 
342 ;  Byrnes  v.  Alexander,  1  ib, 
213  ;  McBride  v.  Whitehead,  Geo. 
Decis.,  Part  I.  1G5  ;  Childress  v. 
Stone,  ib.,  Pt.  II.  157  ;  Jenkins  v. 
Whitehead,  1  Sm.  &  M.  157;  Scott 
Brookway,  7  Mis.  61  ;  Wait  v. 
White,  5  Pike,  040;  Gibson  v.  Gib- 
son, 9  Yeri:^.  329  ;  Cassels  v.  The 
State,  4  ib.  149  ;  McCoy  v.  Martin, 
4  Dana,  580  ;  Tiffin  ».  Forrester,  8 
Mis.  642  ;  Yale  v.  Yale,  13  Conn. 
185  ;  Brown  v.  Handley,  7  Leigh, 
119  ;  Mahon  v.  Johnston,  ib.  317; 
Brugh  v.  Shanks,  5  ib.  598 ;  Moyer 
V.  Wiltberger,  Geo.  Decis.,  Part 
II.  20 ;  Young  v.  Wilson,  24  Miss. 
694  ;  Drermen  v.  Brown,  5  Eng. 
138  ;  Purvis  v.  Coleman,  1  Bosw. 
321  ;  State  v.  Hill,  48  Maine,  241  ; 
Sanderson  v.  Hagau,  7  Flori,  318  ; 
Aspley  V.  Thomas,  17  Tex.  220; 
Wetzlar  v.  Northwest  Ice  Co.,  9 
Cal.  176 ;  Cook  v.  Jones,  28  Geo. 


589;  Baker  v.  Bonesteel,  3  Hilt. 
397  ;  Mississippi,  &c.  v.  Cross,  20 
Ark.  443;  Calhoun  v.  Stokes,  26 
Geo.  325 ;  Fain  v.  Jones,  ib.  360 ; 
Clements  v.  Little,  28  ib.  491;  Cook 
V.  State,  29  ib.  75.  But  see  Butts 
V.  King,  19  Ark.  117  ;  McLure  v. 
Hart,  ib.  119  ;  Smock  v.  White,  27 
Mis.  163  ;  Steamboat,  &c.  v.  Mat- 
thews, 28  ib.  248;  Backster  v.  Hall, 
ib.  593. 

'  Ub.  sup.;  Mattox  ®.  Bryan,  19 
Geo.  157;  Schwall  v.  Gingerick,  13 
111.  697 ;  Southworth  v.  Hoag,  42 
ib.  446  ;  Hughes  v.  Lane,  25  Tex. 
356  ;  McQueen  v.  Fulgham,  27  ib. 
463. 

2  McNair  v.  South  Carolina,  &c., 
10  Rich.  284. 

'  Butler  V.  Livingston,  15  Geo. 
565. 

1  Zeigler  v.  Scott,  10  Geo.  389. 

5  Gordon  v.  Crooks,  11  111.  142. 

6  Hall  V.  Page,  4  Geo.  428.  See 
Pogue  V.  Joyner,  2  Eng.  462. 


party  making  the  case  has  not  prepared  such  finding ;  the  law  presumes 
that  the  fact  was  found  conformably  with  the  evidence.  Sinclair  v.  Tall- 
madge,  35  Barb.  602.  In  Massachusetts,  a  motion  on  the  ground  that 
the  verdict  was  against  the  weight  of  evidence  comes  too  late,  under  the 
26th  rule  of  court,  if  made  at  the  next  term  after  the  case  is  tried  and 
reserved  on  a  question  of  law.  Ilannum  v.  Belchertown,  19  Pick.  311. 
In  Connecticut,  the  Superior  C(Jurt  under  the  statute  (Rev.  St.,  tit.  1, 
§  155)  can  allow  a  motion  for  a  new  trial  for  a  verdict  against  evidence, 
only  where  it  is  of  opinion  that  the  verdict  is  of  that  character;  but  it 
is  not  necessary  that  this  opinion  should  be  certified  by  the  court  in 
allowing  the  motion.     Reboul  v.  Chalker,  27  Conn.  114. 


446  THE   LAW    OF   NEW    TRIALS.  [CH.  XIV. 

evidence  as  it  appears  on  the  record  is  too  slight  to  have 
warranted  the  verdict.^  Or  where  the  verdict  is  contrary 
to  both  law  and  evidence.\a)  These  several  grounds  will 
be  illustrated  in  detail  in  the  sequel  of  the  present  chap- 
ter. Of  necessity,  they  border  very  closely  upon,  or  per- 
haps seem  to  run  into,  each  other ;  but  it  may  be  useful 
to  discriminate  them  as  far  as  possible,  or  even  to  analyze 
and  subdivide  them  into  still  more  minute  distinctions. 

§  2.  The  general  rule  is,  that  the  trial  must  have  turned 
upon  evidence  relating  to  a  material  issue,  legitimately 
made  by  the  pleadings.^  Thus  a  new  trial  was  granted 
for  want  of  proof  of  material  allegations.'*  So  it  is  ground 
of  new  trial  that  there  is  a  variance  between  the  allega- 
tions and  proofs.^  But,  on  the  other  hand,  a  new  trial 
was  granted,  where  a  verdict  was  given  for  the  defendant, 
on  account  of  a  slight  misnomer.^ 

§  3.  If  by  the  pleadings  only  one  issue  is  involved,  and 
the  evidence  is  conflicting,  the  verdict  should  seldom  be 
disturbed ;  but  when  there  are  several  issues,  and  the  ver- 
dict is  general,  it  cannot  be  determined  upon  which  of 
them  the  verdict  is  based,  and,  if  it  might  have  been  upon 
an  issue  upon  which  there  was  no  material  conflict  of  tes- 
timony, and  it  is  erroneous  with  respect  to  that  issue,  this 
will  be  good  ground  for  setting  it  aside,  especially  if  there 
be  erroneous  instructions  in  relation  to  the  law  involved 
in  that  issue.^ 

§  4.  It  is  sometimes  laid  down,  that,  where  a  verdict  is 

'  Keaton  v.  Governor,  &c.,  17        ^  Ryan -y.  Copes,  11  Rich.  217. 
Geo.  228.  ^  Drake  «.  Surget,  36  Miss.  458. 

2  Farriint  v.  Olmins,  3  B.  &  Aid.        ^  Dickerson  i).  Brady,  23  Geo. 

692;  Jackson  v.  Parker,  9  Cow.  73.  KU. 

a  Parker  v.  Ileudrie,  3  Clarke,        t  Gay  v.  Lemle,  32  Miss.  309. 
263. 


(a)  Thus  one  in  favor  of  a  conveyance  from  father  to  son,  which  was 
made  for  the  support  of  the  family  alone.     9  Cow.  73. 


CH.  XIV.]  VERDICT   AGAINST   EVIDENCE.  447 

against  evidence,  a  new  trial  can  be  granted  only  by  the 
judge  who  tried  the  cause.^  Or,  not  by  an  appellate  court.^ 
(See  §§  15,  19.)  But  where  the  record  discloses  a  case  in 
which  the  jury  have  manifestly  found  against  evidence, 
the  court  above  will  sometimes  set  aside  the  verdict.^ 
And,  although  an  application  to  set  aside  a  verdict  as 
against  evidence  is  addressed  to  the  discretion  of  the 
court  below ;  yet  it  must  be  a  legal  and  sound  discretion. 
And  if  a  new  trial  is  refused,  where  the  verdict  is  plainly 
not  the  result  of  a  free,  sound,  and  unbiassed  exercise  of 
judgment  on  the  testimony;  the  judgment  of  the  court 
below,  refusing  a  new  trial,  will  be  reversed.* 

§  5.  The  distinction  is  made,  that  a  verdict  may  be 
against  the  weight  of  evidence,  and  yet  not  so  strongly 
as  to  authorize  a  new  trial,  when  it  has  been  refused  by 
the  court  below.^  Where  the  evidence  is  contradictory, 
the  court  trying  the  cause  may  grant  a  new  trial  because 
the  verdict  is  against  the  weight  of  evidence;  but  its  de- 
cision on  the  motion  is  not  subject  to  revision  by  an  ap- 
pellate court.  And,  in  such  case,  the  court  trying  the 
cause  cannot  be  required  to  state  in  a  bill  of  exceptions 
what  the  evidence  in  the  cause  was,  or  the  facts  proved.^ 

§  6.  And,  in  general,  a  verdict  will  not  be  set  aside, 
though  contrary  to  the  judgment  of  the  appellate  court, 
unless  there  is  a  total  want  of  evidence  to  sustain  it.^     As 


>  Alley  «.  Hampton,  2  Dev.  11.  *  Jourdan  v.  Reed,  1  Clarke,  135. 

2  Hotchkins  v.  Hodge,  38  Barb.     See  Gaster  v.  Hodgins,  21  Ark.  468; 
117.      See   Gillespie  v.   Stone,   43     Morris  v.  Barnes's,    35   Mis.  412; 


Mis.  350  ;  Odam  v.  Nelms,  24  Geo 
412  ;  Wolf  V.  State,  11  Ind.  231 
Maroney  v.  State,  8  Min.  218 
Booth  «.  Small,  25  Iowa,  177 
Heinlin  «.  Fish,  8  Min.  70  ;  How 
ard  V.  Ray,  25  Tex.  88  ;  Ophir  v 


State  V.  Schneider,  ib.  533. 

5  Doe  V.  Roe,  28  Geo.  484. 

6  Grayson  ».  Com.,  6  Gratt.  712. 
^  McDaniel  v.  Parks,  19  Ark.  671 ; 

Escolle  V.  Merle,  9  Cal.  94  ;  French 
n.  Lowry,  19  111.  159  ;  Archdale  v. 


Carpenter,  4  Nev.  534.  Moore,  ib.  505  ;  Goodell  v.  Wood- 

3  Keagg  V.  Hite,  12  111.  99.  rufl",  20  ib.  191. 


448  THE   LAW    OF   NEAV    TRIALS.  [CU.  XIV. 

where  the  question  depends  iii»ou  the  credibility  of  a  Avit- 
ness,  and  that  has  been  fairly  submitted  to  the  jury.'(a) 

§  7.  It  is  an  additional  reason  for  ordering  a  new  trial, 
on  the  ground  of  a  verdict  against  evidence,  that  justice 
was  not  done^  (see  chap.  3):  and  that  the  evidence  was  of 
a  loose  character;  the  case  important;  and  that  the  losing 
party  was  surprised  by  the  evidence.^ 

§  8.  A  new  trial  may  be  granted  on  this  ground,  though 
a  particular  fact  was  left  to  the  jury,  which  they  find.* 

§  9.  But  no  ground  of  new  trial  is  more  carefully  scru- 
tinized, or  more  rigidly  limited.  It  is  regarded  as  incon- 
sistent with  the  established  maxim  of  law — "  ad  questio- 
nem  legis,  judices,  ad  qiiestionem  fadi,  juratores,  respon- 
dent."^  It  is  said :  "  Courts  should  rarely  take  it  upon 
themselves  to  decide  on  the  effect  of  evidence.  Were 
they  so  to  act,  they  might,  with  truth,  be  charged  with 
usurping  the  privileges  of  the  jury."^  "If  it  is  clearly 
wrong,  we  must  do  so;  if  we  only  doubt  its  correctness, 

1  Standley  v.  Miles,  36  Miss.  435.  »  Sce  De  Tastet  v.  Baring,  11  E. 

2  Jackson  v.  Stembergli,  1  265  ;  Woodcock  v.  Nuth,  8  Bing. 
Caiues   163  I'^O  ;  Campbell  v.  Spencer,  2  Binn. 

3  Khoneu.  Ins.  Co.,1  Wasli.  123;  129  ;  Van  Norman  v.  Wheeler,  13 
Hutchinson  v.  Coleman,  5  Halst.  Tex.  316. 

74.  6  Giles  v.  The  State,  6  Geo.  276. 

i  Khone  v.  Ins.  Co.,  1  Wash.  123. 


(a)  A  verdict  will  not  be  set  aside  by  the  appellate  court  upon  the 
ground  of  the  insufficiency  of  the  evidence  to  sustain  it,  when  the  lower 
court  has  refused  to  do  so,  unless  there  is  such  a  decided  preponderance 
of  evidence  against  it  as  to  create  a  conviction  that  it  was  the  result  of 
mistake  or  misconduct  on  the  part  of  the  jury.  Quint  v.  Ophir,  4  Nov. 
304.  So  when  a  case  has  been  fairly  submitted  to  the  jury  upon  the 
evidence,  and  no  error  in  the  charge  of  the  court  is  alleged,  and  the 
verdict  is  not  manifestly  and  decidedly  against  the  evidence.  Field  v. 
Boynton,  37  Geo.  188.  When  the  court  grants  a  new  trial  on  the  ground 
that  the  verdict  is  against  evidence,  the  court  above  will  reverse  such 
judgment  where  it  manifestly  api)oars  from  the  record  that  it  is  not. 
Cleckley  v.  Beall,  37  Geo.  607 ;  Hicks  v.  Blake,  13  Min.  434. 


CII.  XIY.]  VERDICT    AGAINST    EVIDENCE.  449 

we  must  let  it  alone."^  "  We  are  not  satisfied  that  the 
verdict  of  tlie  jury  was  right.  But  this  is  not  enough. 
A  mere  difference  of  opinion  between  the  court  and  jury 
does  not  warrant  the  former  in  setting  aside  the  finding 
of  the  latter.  That  would  be,  in  eflect,  to  abolish  the  in- 
stitution of  juries,  and  substitute  the  court  to  try  all 
questions  of  fact."^  And  the  distinction  is  made,  that  it 
is  the  duty  of  the  court  to  determine  upon  the  competency 
of  evidence,  and  not  upon  its  sufficiency ;  and  a  verdict 
ought  not  to  be  set  aside,  although  it  should  be  the 
opinion  of  the  court  that  the  evidence  was  not  sufficient 
to  justify  it;  that  a  jury  may  find  a  fact  from  slight  evi- 
dence, if  it  is  competent  f  and  that  the  evidence  must  be 
clearly  insufficient  to  warrant  the  verdict,  to  authorize 
the  granting  of  a  new  trial ;  especially  by  an  appellate 
court.  ^ 

§  10.  Hence  it  is  the  prevailing  rule,  that  a  verdict  will 
not  be  set  aside,  unless  clearly^  ixtlpahly^  decidedly,  and 
strongly  against  the  evidence  f  or  so  much  against  the 
weight  of  evidence,  as,  on  the  first  blush  of  it,  to  shock 
the  sense  of  justice  f  or  unless  there  has  been  a  flagrant 
abuse  of  discretion  -J  that  courts  will  never,  in  the  absence 

'  Per  Thumian,   C.  J.,  McGat-  boken,  &c.,  1  Plilt.  161 ;  Mclntyre 

rick  V.  Mason,  4  Ohio  (N.  S.),  575.  v.  Crawford,  26  Geo.  438  ;  Ferrell 

2  French  v.  Willard,  2  Ohio  St.  r.  McKinny,  ib.  447 ;  Durham  v. 

53.  Broddus,  ib.  524;  Whitten  v.  Knox, 

»  Wendell  v.  Moulton,  6  Fost.  41.  ib.  560  ;  Carpenter  v.  State,  &c.,  ib. 

*  Grayson  «.  Com.,  6  Gratt.  712;  622;   Boon   v.   Boon,  29  ib.   134; 

Drennen  v.  Brown,  5  Eng.  188.  Lang  v.  Brown,  ib.  628  ;  Bowman 

5  Nunes  v.  Carter,  Law  Rep.  1  v.  Torr,  3  Clarke,  571  ;  Rudman  v. 

P.  C.  342  ;  Tobnan  v.  Race.  36  111.  Rudman,  5  Ind.  63  ;  Smith  v.  Tiff- 

472  ;  State  v.  Elliott,  15  Iowa,  72  ;  any,  36  Barb.  23  ;  Kimball  v.  Gear- 

Erben  ».  Lorillard,  23  Barb.   82;  heart,  12  Cal.  27. 

Willis  V.  Willis,  18  Geo.  13  ;  Burk-  e  Hazen  v.  Henry,  1    Eng.  86  ; 

halter  v.  Wells,  ib.  367 ;   Page  v.  Lewis  v.  Read,  ib.  428  ;  Waters  v. 

Carter,  8  B.  Mon.  192 ;  Wright  v.  Bristol,    26   Conn.   398 ;  Daley  v. 

Greenwood,  17  Geo.  418  ;  Latham  Norwich,  &c.,  ib.  591  ;  Drennen  v. 

V.  Selkirk,  11  Tex.  314  ;  Baker  v.  Brown,  5  Eng.  138 ;  State,  &c.  v. 

Pritchett,    16    111.   66  ;    Moore    v.  Wooddy,  ib.  638. 

Foster,   10  B.   Mon.  255  ;  Sims  v.  '  Hopkins   v.  Tilman,    25   Geo. 

Chance,  7  Tex.  561  ;  McMillan  v.  212. 
McCoy,  13  Geo.  320 ;  Hunt  v.  Ho- 

29 


450  THE    LAW    OF   NEW    TRIALS.  [CH.  XIV. 

of  the  most  satisfactory  evidence  that  the  verdict  is  erro- 
neous, substitute  their  impressions  for  the  opinion  of  the 

'  Lang  V.  Hopkins,  10  Geo.  37. 

(a)  When  the  evidence  will  sustain  the  verdict  it  should  not  be  set 
aside,  although  in  the  opinion  of  the  court  the  jury  might  have  found 
otherwise.  Knickerbocker  v.  Anderson,  2  Vroom,  '533 ;  New  York  v. 
Graham,  2  Duv.  506.  Nor  (as  is  sometimes  held)  though  the  mere 
weight  of  evidence  is  against  it.  State  v.  Crytes,  24  Ark.  183;  Dicker- 
son  V.  Johnson,  ib.  251.  Nor  where  the  evidence  is  merely  conflicting. 
Lewis  V.  Blake,  10  Bosw.  198;  Rowe  v.  Smith,  ib.  268  ;  Ammons  v.State, 
9  Flori.  530;  Brockman  v.  Berryhill,  16  Iowa,  183  ;  Brown  v.  Jefferson, 
ib.  339;  Edmiston  v.  Garrison,  18  AVis.  59-1;  White  v.  Clayes,  32  111. 
325;  Powell  V.  ITealey,  28  Tex.  52;  Garner  v.  Cutler,  ib.  175;  Floyd 
V.  Rice,  ib.  341 ;  Seal  v.  State,  ib.  491 ;  Stroud  v.  Springfield,  ib.  649 ; 
McDonald  v.  Maudlin,  29  Ind.  87;  Kaufman  v.  Bott,  ib.  521 ;  Davis  v. 
Ilocppncr,  44  111.  306;  Young  v.  Read,  25  Tex.  (Supp.)  113;  Adams  v. 
George,  ib.  374;  Fowler  v.  Lewis,  ib.  380  ;  Treat  v.  Reilly,  35  Cal.  129; 
Hastings  v.  Stark,  36  ib.  122 ;  Stark  v.  Noble,  24  Iowa,  71 ;  Smith  v. 
McLean,  ib.  322  ;  Callanan  v.  Shaw,  ib.  441 ;  Schrimper  v.  Ileilman,  ib. 
505;  Sherman  tJ.  Western,  ib.  515;  Mitchell  v.  Tolley,  4  Kans.  177. 
Where  the  verdict  is  not  shown  not  to  have  been  the  result  of  a  sound 
and  honest  exercise  of  judgment  on  the  part  of  the  jury.  Stark  v.  Noble, 
24  Iowa,  71 ;  McNorton  v.  Akers,  ib.  369.  And  these  rules  more  espe 
cially  apply  to  motions  for  new  trial  in  a  higher  court.  Lubeck  v.  Bul- 
lock, 24  Cal.  338  ;  Peterie  v.  Bugbey,  ib.  419  ;  Aldrich  v.  Palmer,  ib. 
513 ;  Lane  v.  Brown,  22  Ind.  239  ;  Brooks  v.  Perry,  23  Ark.  32  ;  Mayson 
V.  Edington,  ib.  208;  Burlington  v.  Greene,  22  Iowa,  508  ;  Chicago  v. 
Yosburgh,  45  111.  311;  Grubb  v.  Kalb,  37  Geo.  459;  Perry  v.  Hoduett, 
38  ib.  103;  Jones  v.  Block,  30  Cal.  227.  In  Massachusetts,  if  a  case  is 
submitted  to  the  whole  court,  that  a  verdict  may  be  set  aside  if  upon 
the  evidence  the  jury  were  not  warranted  in  finding  the  verdict,  judg- 
ment will  be  rendered  on  the  verdict,  if  there  is  any  evidence,  however 
sli"ht,  even  though  contradicted  and  controlled  by  other  evidence,  which 
could  properly  be  sul)niitted  to  thorn,  and  on  which  they  could  legally 
find  their  verdict.  Forsyth  v.  Hooper,  11  Allen,  419.  The  court  Avill 
not  disturb  a  finding  of  the  court  below,  unless  the  evidence  was  such 
that,  if  the  question  had  been  submitted  to  a  jury  and  they  had  rendered 
a  verdict  in  accordance  with  the  finding,  the  court  would  have  set  it  aside 
as  contrary  to  evidence.  Moore  v.  Murdock,  26  Cal.  514.  The  finding 
of  a  jury,  upon  the  genuineness  of  a  signature,  will  be  rarely  interfered 


en.  XIV.]  VERDICT    AGAINST    EVIDENCE.  451 

§  11.  Accordingly,  in  general,  if  there  is  any  evidence 
to  support  a  verdict,  it  will  not  be  disturbed.^  Or,  as  is 
sometimes  held,  where  there  is  evidence  on  both  sides,  the 
verdict  will  not  be  disturbed.^  It  is  not  sufficient  that 
the  evidence  might  incline  the  mind  of  the  court  to  a 
difierent  result.^  The  question  is  not,  whether  the  court, 
from  a  detail  on  paper  of  all  the  evidence,  would  have 
found  as  the  jury  did ;  but  whether  there  was  such  evi- 
dence as  would  justify  the  jury  in  giving  the  verdict. '' 
Thus,  in  a  late  case  in  Massachusetts,  it  is  said :  "  The 
evidence  was  extremely  loose,  vague,  and  indeterminate. 
But  it  was  not  objected  to  as  incompetent,  and  we  can- 
not say  that  the  jury  came  to  a  wrong  conclusion  upon 
it."^(«) 

§  12.  In  pursuance  of  these  general  rules,  it  is  held, 

'  Rogers  v.  King,  12  Geo.  229.  *  Bishop  v.  Perkins,    19    Conn. 


2  Easterly  v.  Cole,  1  Barb.  235 
Pleak  V.  Chambers,  7  B.  Mou.  565 
Pullkerson  v.  Bollinger,  9  Mis.  838 


800 ;  Wendell  v.  Safford,  12  N.  H. 
171  ;  Ways  v.  Collins,  6  Leigh, 
230  ;  Brugh  v.  Shanks,  5  ib.  598. 


Glasgon  ®.  Moore,  ib.  843.  *  Per  Shaw,  C.  J.,  Whiton  v.  Old 

3  Sullivan  v.  Dollins,  13  111.  85.       Colony,  &c.,  2  Met.  8. 

with,  as  being  against  evidence.  Wright  v.  Carillo,  22  Cal.  595.  A  new 
trial  will  not  be  granted,  where  the  burden  of  proof  is  upon  the  appli- 
cant and  there  is  a  conflict  in  the  evidence,  more  especially  where  his 
own  evidence  is  inconsistent  with  itself.  Crook  v.  Forsyth,  30  Cal.  662. 
When  evidence  is  conflicting,  it  is  for  the  jury  to  determine  from  all  the 
circumstances  to  whom  they  will  give  credit.  Chicago  v.  Northern,  36 
III.  60.  As  where  many  of  the  witnesses  on  either  side  are  directly  or 
indirectly  interested.  And  the  case  must  be  a  very  strong  one  to  justify 
a  reversal  of  the  judgment,  on  the  ground  that  the  verdict  is  against 
the  weight  of  evidence.  Hull  v.  Alexander,  26  Iowa,  569.  So  where, 
upon  the  question  of  value  of  certain  goods,  there  is  a  conflict  of  testi- 
mony. Newell  V.  Eusk,  23  Ind.  210.  A  verdict  will  not  be  set  aside 
because  supported  by  only  slight  evidence,  if  uncontradicted.  Chicago 
V.  Williams,  44  111.  176. 

(a)  Where  the  court  see  that  they  caunot  support  a  verdict  without 
becoming  judges  of  the  fact,  they  will  reverse  it,  though  they  think  that 
the  evidence  fully  authorized  the  verdict.  Pilcher  v.  Hart,  1  Humph. 
524. 


452  THE    LAW    OF    NEW    TRIALS.  [CH.  XIV. 

that,  whenever  there  is  any  legal  arid  competent  evidence 
hefore  the  jury  to  maintain  and  support  their  verdict,  the 
court  has  no  legal  authority  to  grant  a  new  trial,  on  the 
ground  that  the  verdict  was  without  evidence.^  And 
that  a  verdict  will  not  he  set  aside  hecause  founded  on 
slight  evidence."^  Nor  merely  on  the  ground  oi  insujjiciency 
of  proof.' 

§  13.  But  where  there  is  no  evidence  against  the  de- 
fendant, a  verdict  against  him  will  be  set  aside.*  Or  where 
it  is  clear,  that  the  evidence  is  not  reasonably  sufficient  to 
prove  the  case,  even  if  uncontradicted.*  So  where  a  bill 
of  exceptions,  to  an  opinion  of  a  court  overruling  a  motion 
for  a  new  trial,  instead  of  stating  the  facts  proved,  set 
forth  the  evidence  adduced  at  the  trial ;  but  this  evidence 
showed,  that  the  evidence  of  the  party  for  whom  the 
verdict  was  found,  supposing  it  true,  and  disregarding  the 
evidence  for  the  other  party,  was  not  sufficient  to  warrant 
the  verdict :  the  exceptions  were  held  to  be  well  taken.^ 

§  14.  But  a  new  trial  was  refused,  where  no  objection 
was  made  at  the  trial  to  want  of  proof  of  a  partnership 
between  the  plaintiffs.^  And,  on  the  other  hand,  a  verdict 
for  the  defendant  was  set  aside,  rendered  on  the  ground 
of  want  of  authority  in  the  plaintiff's  attorney,  though 
this  might  furnish  reason  for  dismissal  or  continuance. 
So  where  this  issue  is  submitted  to  the  jury  by  the  court, 
without  being  pleaded,  though  without  objection  of 
counsel.^  So  in  a  case  where  the  proof  of  a  will  was  ob- 
jected to,  for  non-}»roduction  of  the  only  living  wit- 
ness, it  was  said :  "  This  being  a  verdict  subject  to  the 
opinion  of  the  court,  the  court  are  authorized  to  draw  the 

1  "Warner  v.  Robertson,  13  Geo.  ^  Chandler  v.  Heckling,  22  Tex. 
370.  36. 

2  Goodman  v.  Smith,  5  Dev.  450.  «  Rohr  v.  Davis,  9  Leigh,  30. 

3  Angus  V.  Dickcrson,  1  Meigs,  ">  Whitlock  v.  Biieno,  1  Hilt.  72. 
459  *  Savary  v.  Savary,  3    Clarke, 

«  Swan  V.  Hyde,  9  Mis.  849.  271. 


CH.  XIV.]  VERDICT    AGAINST    EVIDENCE.  453 

same  conclusions  wliicli  the  jury  would  have  been  justi- 
fied in  drawing  from  the  evidence ;  and  if  they  would 
have  been  justified  in  finding  in  favor  of  the  will,  even 
if  the  witness  had  been  produced  and  had  sworn  that  it 
was  not  subscribed  by  the  witnesses  in  presence  of  the  tes- 
tator, the  fact  may  be  considered  as  found  by  the  jury."^ 

§  15.  ]\Iore  especially  a  court  of  errors  or  appellate 
court  will  not  set  aside  the  verdict  of  a  jury,  where  the 
question  is  one  wholly  of  fact,  and  no  additional  ground 
is  alleged,  unless  it  is  clearly,  strongly,  and  unequivocally 
against  the  weight  of  evidence,  or  manifest  injustice  has 
been  done.^  (See  §§  4,  19.)  Or  where  there  is  suflicient 
evidence  to  authorize  it.^  Or  for  a  mere  difference  of 
opinion.^  Or  slight  dissatisfaction  with  the  verdict.*  Or 
unless  the  finding  of  facts  by  a  court  or  jury  be  impeached 
for  fraud,  mistake,  misconduct,  or  some  improper  influ- 
ences.^ Or  unless  there  is  a  great  preponderance  of  evi- 
dence against  it.^  For  the  reason,  that  the  revising  court 
can  have  but  an  imperfect  view  of  the  nature  of  the  tes- 
timony taken  below.^a)  The  rule  is  adopted  even  in 
criminal  cases  ;  except  in  cases  "strong  and  unequivocal."^ 

'  Per  Sutherland,  J.,  Jackson  v.  Tex.  55G ;  4  Ohio  N.  S.  56(j ;  State 

Christman,  4  Wend.  278.  v.  Anderson,  19  Mis.  241  ;  13  111. 

2  Welden  v.  Francis,  12  111.  460 ;  699  ;  State  v.  Sartor,  3  Strobh.  60. 

Mealing  y.  Pace,  14  Geo.  596  ;  Ban-  ^  Muudy  v.  Bryan,  14  Mis.  456. 

field  V.  Bruton,    7  B.  Mon.  108;  »  McGatrick  v.  Wason,  4   Ohio 

Hunt  V.  Hunt,  3  ib.  575 ;  Deverert  (N.  S.)  566. 

V.  Loomer,  21  Conn.  245 ;  Bagby  ^  Bivens  ■o.  The   State,  6   Eng. 

V.  Lewis,    2  Mour.    76  ;  Roach  v.  455. 

Waid,  ib.  142  ;  Dodge  v.  Brittain,  e  Payne  v.  Jacobs,  1  Cal.  39. 

1  Meigs,  84.     See  Haight  v.  Tur-  ^  England  v.  Burt,   4   Humph, 

ner,  21  Conn.  593  ;  State  Bank  v.  399. 

Wilson,  14  Ark.  113  ;  Spencer  v.  ^  Jones  v.  Jennings,  10  Humph. 

Morgan,  5  Ind.    146  ;   Eudman  v.  428. 

Iludman,ib.  63;  Scohey«.  Arming-  ^  tji^   State  ?).  Cruise,  16   Mis. 

ton,   ib.  514;    Clark  v.    Davis,"?  391. 

(a)  It  is  said  this  is  a  rule  for  the  government  of  the  Supreme  Court, 
and  not  the  Circuit  Court.  On  the  contrary,  this  rule  of  the  Supreme 
Court  imposes  on  the  Circuit  Court  a  heavy  obligation  to  observe  the 
rule  of  the  common  law,  applicable  to  the  granting  of  new  trials  at  msi 


454  THE    LAW    OF   NEW    TRIALS.  [CII.  XIV. 

§  IG.  These  rules  seem  to  apply  with  additional  force, 
where  a  new  trial  has  been  refused  in  the  court  below, 
when  asked  on  the  ground  that  the  verdict  was  contrary 
to  evidence.^  And,  on  the  other  hand,  when  evidence  has 
been  submitted  to  the  jury  on  both  sides,  which  is  very 
conflicting,  and  no  rule  of  law  has  been  violated  in  its 
admission;  it  is  held  an  error  in  the  court  to  grant  a  new 
trial,  on  the  ground  that  the  verdict  is  against  evidence. 
The  jury  are  the  exclusive  judges  in  such  cases,  as  to  the 
weight  of  the  evidence,  and  the  credibility  of  the  wit- 
nesses.^ 

§  17.  It  is  sometimes  held  that  a  motion  to  set  aside  a 
verdict  as  against  evidence  can  be  entertained,  only  when 
the  ichole  of  the  evidence  in  the  case  is  reported ;  and  this 
notwithstanding  an  express  statutory  provision  for  new 
trials,  not  containing  in  terms  this  restriction.^  The  court 
say,  the  presiding  judge  certified,  "that  it  is  a  correct 
report  of  the  evidence,  so  far  as  it  had  any  bearing  upon 
the  question. — AVhat  one  justice  or  one  counsel  might 
consider  to  be  the  whole  or  the  material  evidence  bearing 
upon  the  point  another  might  not.     The  court  of  law 

'  Roberts  V.  Stato,  3  Kelly,  310  ;  2  Walker  v.  Walker,  11  Geo.  203. 

Dufield  V.  Cross,  13  111.  69!);  7  Tex.  »  Rogers  v.  Kennebec,  &C.,   38 

566  ;  Chevallier  v.  Denson,  8  Tex.  Maine,  237. 
439. 

prncs,  lest  injustice  be  done.  England  v.  Bnrt,  4  Humph.  399.  In  gene- 
ral, where  there  is  evidence  which  tends  to  sustain  the  finding  of  the 
court  below,  the  court  above  will  not  reverse  it  for  alleged  error  in  re- 
fusing a  new  trial  on  account  of  insufficiency  of  the  evidence.  Gordon 
V.  Norman,  21  Ind.  300.  The  presumption  is  that  judge  and  jury  har- 
monize in  support  of  the  verdict.  Antoine  v.  Ridge,  23  Cal.  219.  More 
especially,  unless  the  conflict  of  evidence  is  slight,  and  the  weight  clearly 
against  the  verdict;  or  there  are  other  circumstances  strongly  indicating 
that  injustice  has  been  done.  Acklcy  v.  Berkey,  22  Iowa,  226.  In  New 
York,  a  new  trial  cannot  be  granted  on  the  ground  that  the  verdict  is 
unsupported  by  evidence,  when  the  case  is  before  the  court  above  on  cx- 
ccptioMS  only.     Green  v.  Roberts,  47  Barb.  521, 


CH.  XIV.]  VERDICT    AGAINST   EVIDENCE.  455 

must  regard  the  report  as  correctly  made.  This  might 
subject  the  rights  of  a  party  to  the  control  of  the  pre- 
siding justice  without  affording  him  any  relief  for  errors 
in  the  selection  of  what  would  present  the  whole,  or  be 
material  for  a  decision  of  the  question."^  But  in  other 
cases  it  is  held,  that,  if  a  motion  for  a  new  trial  on  this 
ground  be  overruled,  a  bill  of  exceptions  ought  not  to 
state  all  the  evidence,  but  only  the  facts  appearing  to  the 
court  to  have  been  proved.^  The  question  depends  very 
much  upon  express  statute  or  local  usage. 

§  18.  If  a  bill  of  exceptions  to  the  opinion  of  a  court, 
overruling  a  motion  for  a  new  trial,  sets  forth  all  the  evi- 
dence; but  shows  that  there  was  no  conflict,  and  that, 
excluding  all  the  evidence  of  the  losing  party,  and  admit- 
ting the  truth  of  all  the  evidence  adduced  for  the  prevail- 
ing party,  the  verdict  was  contrary  to  the  evidence,  and 
to  justice:  such  exceptions  are  well  taken,  to  enable  an 
appellate  court  to  review  and  reverse  the  judgment  over- 
ruling the  motion  for  a  new  trial.^(a) 

'  Per  Sliepley,  C.  J.,  Rogers  v.  2  Bennett  v.  Hardaway,  6  Munf. 
Kennebec,  &c.,  38  Maine,  230.  125  ;  2  Leigh,  840. 

3  2  Leigh,  340. 

(rt)  On  a  motion  to  set  aside  a  verdict  as  being  against  the  weight  of 
evidence,  the  statement  or  bill  of  exceptions  must  set  forth  all  the  testi- 
mony. Dawley  v.  Hovious,  23  Cal.  103 ;  Peterson  v.  Manley,  23  Ark. 
528 ;  Burlington  v.  Green,  21  Iowa,  335 ;  State  v.  Bonds,  2  Nev.  265 ; 
Bank  v.  Bank,  3  W.  Ya.  386 ;  McCool  v.  Galena,  17  Iowa,  461 ;  AVest 
V.  Duffey,  2  Kans.  347.  Where  there  is  a  conflict  of  testimony,  if  the 
bill  of  exceptions  does  not  show  that  there  were  only  two  witnesses,  or 
that  it  contains  "  all  the  evidence  in  the  cause,"  it  will  be  presumed  that 
the  evidence  warranted  the  verdict.  Whiteside  v.  Button,  2  Cold.  94. 
So  where,  upon  a  motion  to  set  aside  a  verdict  as  against  the  law  and 
evidence,  the  record  does  not  purport  to  set  forth  all  the  evidence.  Wads- 
worth  V.  Harrison,  14  Iowa,  272.  The  refusal  of  the  court  below  to 
grant  a  new  trial,  on  the  grounds  that  the  verdict  was  against  the  evi- 
dence and  instructions,  will  not  be  reviewed,  when  the  record  does  not 
contain  the  instructions  and  all  the  evidence.     Beal  v.  Stone,  22  Iowa, 


456  THE    LAW    OF   NEW    TRIALS,  [CH.  XTV. 

§  18a.  We  now  proceed  to  consider  the  precise  grounds 
upon  which  apjtlications  of  this  nature  will  be  grunted  or 
denied;  often  involving  very  nice  shades  of  distinction, 
and  often  so  far  dependent  upon  the  facts  of  individual 
cases,  as  to  render  very  difficult  the  deduction  of  any 
unqualified  rule. 

§  19.  It  is  often  laid  down,  that,  on  a  motion  to  set  aside 
a  verdict  as  contrary  to  evidence,  the  court  will  not  exa- 
mine the  evidence  to  see  ivhich  side  has  most  weight,  but  to 
see  whether  there  is  a  total  lack  on  one  side.  It  is  for 
the  jury  to  decide  on  the  weight  of  evidence.'  That,  when 
the  verdict  rests  on  the  mere  weight  of  evidence,  the  court 

1  French  v.  Roll,  24  Geo.  171  ;  State,    8   En^.  285  ;    Ilendryx    v. 

Smith  r.  Tiflany,  :!G  Barb.  23;  Bush  Sharp,  ib.  306  ;  Hammond  y.' Wad- 

V.  Kindred,  20  111.  93  ;  Morgan  v.  hams,  5  Mass.  353 ;  Smith  v.  Park- 

Ilycrson,  ib.  343  ;   Mains  v.  The  hurst,  2  Str.  1105. 

447.  A  new  trial  will  not  be  granted  because  the  verdict  is  against  the 
weight  of  evidence,  if  the  evidence  is  not  reported  with  the  allowance  of  the 
court  trying  the  case,  as  required  by  a  rule  of  court.  Olney  v.  Chadsey, 
7  R.  I.  224.  Where  the  only  question  arising  in  the  record  is,  did  the 
court  below  err  in  overruling  the  motion  for  a  new  trial,  on  the  ground 
that  the  verdict  was  again.st  law  and  evidence,  and  the  bill  of  exception 
states  the  evidence  of  the  witnesses,  instead  of  the  facts  appearing  to 
the  court  to  have  been  proved  by  each ;  the  court  above  will  not  reverse 
the  judgment,  unless  by  rejecting  all  the  parol  evidence  for  the  exceptor, 
and  giving  full  force  and  credit  to  the  adverse  party,  the  decision  still 
appears  wrong.  Sanaker  v.  Cushwa,  3  W.  Va.  29.  On  remanding  a 
cause  for  a  new  trial,  on  other  grounds  than  because  the  verdict  was  con- 
trary to  the  evidence,  the  court  will  express  no  opinion  on  that  question, 
though  it  is  also  raised.  Thompson  v.  Updegraff,  3  W.  Va.  629 ;  Hess 
V.  Johnson,  ib.  645.  In  Michigan,  the  practice  in  reviewing  trials  upon 
issues  on  a  quo  warranto  is  governed  by  that  at  the  common  law. 
Where  there  is  no  report  from  the  circuit  judge,  and  no  means  of  deter- 
mining what  have  been  his  rulings,  or  what  was  the  evidence,  except 
from  the  conflicting  affidavits  of  the  parties;  the  Supreme  Court  will  not 
review  the  proceedings.  If  the  motion  is  to  be  on  the  ground  that  the 
verdict  is  against  evidence,  the  evidence  should  not  only  be  incorporated 
in  the  report,  but  the  judge  should  also  express  his  opinion  thereon. 
People  V.  Sackett,  14  Mich.  243. 


en.  XIV.]  VERDICT    AGAINST    EVIDENCE.  457 

will  not,  except  in  extreme  cases,  grant  a  new  trial. ^  That 
there  must  be  a  total  want  or  failure  of  evidence  to  sus- 
tain the  verdict.^  More  especially  where  there  is  much 
conflict  of  evidence,  and  the  judge  before  whom  the  action 
was  tried  has  refused  to  set  aside  the  verdict  as  contrary 
to  evidence  and  the  weight  of  evidence,  the  court  above 
will  not  grant  a  new  trial.'  (See  §§  4,  15.)  "Where  the 
evidence  on  the  side  of  a  verdict,  taken  by  itself,  is  sufli- 
cient  to  justify  the  verdict,  and  there  is  also  conflicting 
evidence,  the  court  above  will  not  disturb  the  verdict.* 
And  it  is  not  error  to  refuse  a  new  trial  because  the  evi- 
dence is  conflicting.^  The  court  above  will  not  award  a 
new  trial,  even  in  a  criminal  case,  notwithstanding  the 
statements  of  witnesses  be  contradictory,  if  there  is  never- 
theless enough  to  support  the  verdict,  so  that  it  cannot 
be  said  to  be  without  evidence  in  any  essential  ingredient 
of  the  finding.^ 

§  20.  Substantially  the  same  rule  is  expressed  in  the 
proposition,  that,  where  there  is  evidence  on  both  sides,  or 
the  evidence  is  various  and  contradictory,  a  verdict  will 
not  be  set  aside,  on  the  ground  that  it  is  against  the  weight 
of  evidence.^     Or  where  there  is  substantial  evidence  on 


'  Fuukhouser  v.  Pogue,  8  Eng.  Allen  v.  Nordheimer,  8  Eng.  339  ; 

295.  Fowler  v.  Waldrip,  10  Geo.  350  ; 

2  Bennett  v.  The  State,  8  Eng.  Menley  v.  Menley,  9  Tex.  60. 
694.  6  Stanton  v.  The  State,  8  Eng. 

»  Pearce  v.  Vaughn,  25  Geo.  27 ;  317. 
Macon,  &c.  v.  Davis,  27  Geo.  113  ;        '  Easterly  v.  Cole,  1  Barb.  235 
Scott  V.  Newsom,  ib.  125;  Lockett  Pleak  v.  Chambers,  7  B.  Mon.  565 
V.  Mims,  ib.  207;  Morris  v.  Stokes,  Fulkerson  v.  Bollinger,  9  Mis.  838 
ib.  239  ;  Waddel  v.  State,  ib.  262  ;  Glasgon   v.   Moore,   ib.   843  ;    Eo- 
Phillips  V.  Stewart,  ib.  402  ;  Orr  v.  zar  v.  Burns,  13  Geo.  34  ;  Chevail- 
Huff,  ib.  422  ;  Rawson  v.  McJun-  lier  v.  Brewer,  6  Tex.  398 ;  Sparks 
kins,  ib.  432;  Diomatari  «.  Choate,  v.  Beavers,   6  Eng.  630  ;  Fleming 
28  ib.  320;  Hanby  v.  Tucker,  ib.  v.  Hollenback,  7  Barb.  271  ;  Legg 
484  ;  Coggin  v.  Jones,  29  ib.  257  ;  v.  McNeil,   2  Tex.   42  ;    Smith  v. 
Weddle    v.    Stark,    10    Cal.    301;  Williams,  22  111.  357;  Dart  «.  Far- 
Stumps  V.  Kcllev,  22  111.  140;  Gor-  mers',  &c.,  27  Barb.  337  ;  Ardery 
don  V.  Pitt,  3  Clarke,  385.  v.  Pollys,  5  Ind.  186  ;  4  Tex.  465  ; 

*  Shanks  v.  Hays,  6  Ind.  59.  Scannell  v.  Strahle,  9  Cal.  177;  The 

5  State  V.  Lamout,  3  Wis.  437;  State  Bank  ij.  McGuire,  14  Ark. 530. 


458 


THE   LAW    OF   NEW    TRIALS. 


[CII.  XIV. 


botli  sides.'  Or  when  there  is  conflicting  evidence,  and  the 
verdict  is  not  manifestly  against  the  weight  of  evidence.- 
Or  when  the  weight  of  evidence  agrees  with  the  verdict.^ 
Especially  where  the  case  is  tried  by  the  court.^(a) 

§  21.  The  rule,  however,  is  more  frequently  stated  in 
the  qualified  form,  as  we  have  already  remarked  in 
general  terras,  that  a  verdict  will  not  be  set  aside,  as 
against  the  mere  ■preponderance  of  testimony.'  Or  unlesa 
the  preponderance  of  evidence  is  very  clear."  Or  unless 
clearly  against  evidence,  or  the  palpable  preponderance 
of  evidence.^  More  especially  in  case  of  a  large  body  of 
evidence  on  both  sides,  contradictory  in  its  character.^ 
Or  where  the  bill  of  exceptions  docs  not  profess  to  give 
all  the  evidence;  especially  if  tlie  evidence  given  shows 
no  more  than  a  right  to  nominal  damages.^ 


'  Hendry  v.  Smith,  28  Geo.  308. 

2  Tallahassee,  &c.  v.  Macon,  8 
Flori.  299. 

3  Hancock  v.  Tucker,  8  Flori. 
435. 

<  Tuten  v.  Stone,  12  Rich.  448. 

5  Dickson  «. Parker,  3  How.lMiss. 
219  ;  Smith  «.  Smith,  29  Geo.  3G5. 

6  Brooks  V.  Bickuell,  4  McLean, 
70. 

^  Fisher  v.  Leach,  10  S.  &  M. 
313  ;  Allen  v.  Garesche,  13  Mis. 
308.  See  5  J.  J.  Mar.  389;  Kelloii:g 
V.  Endlong,  7  ITow.  Miss.  340;  Ell- 
zey  V.  Stone,  5  S.  &  M.  21 ;  Yarbo- 
roiigh  V.  Abernathy,  1  Meigs,  413  ; 
Perry  v.  Smith,  4  Yerg.  323  ;  Sel- 
lars  V.  Davis,  ib.  503  ;  Pcttitt  v. 
Pcttitt,  4  Humph.  191  ;  Grubb  v. 
McClatchy,  3  Yerg.  442  ;  Harbour 
v.  Kayburn,  7  ib.  432  ;  Martin  v. 
Withington,  4  Mis.  518  ;  Wilson  v. 
Burks,  8  ib.  440  ;  llenuick  v.  Wal- 


ton, 7  ib.  292;  Lowry  v.  Orr,  1  Gil- 
man,  70;  Todd  v.  Boone  County,  8 
Mis.  431;  Bagshaw  v.  Dorsctt,  Geo. 
Decis.,  PartlL  42  ;  Davis  v.  Hale, 
il).  82  ;  Pendleton  v.  :Mills.  ib.  166  ; 
Bonds  ?).  Gray,  ib.  136  ;  Walker  v. 
Tatuum,  ib.  161 ;  Wilson  v.  Natio- 
ns, 5  Yerg.  211;  Knight  v.  ]\Iantz, 
Geo.  Decis.,  Part  L  22;  Irwin  v. 
Morell,  Dudley  (Geo.),  72  ;  Flour- 
ney  v.  Coxe,  ib.  5  ;  Faber  v.  Bald- 
rick,  3  Brevard,  350 ;  Swipes  v. 
Remourssin,  2  ib.  33  ;  Lavall  v. 
Cromwell,  3  ib.  463  ;  Brugh  v. 
Shanks,  5  Leigh,  598;  Bank  v. 
King,  2  Green,  45  ;  Jackson  -a. 
Packer,  13  Conn.  342  ;  Stanley  v. 
Wliipple,  2  McLean,  35. 

«  Glidden  v.  Dunlap,  28  Maine, 
379. 

5  Vaughn  v.  Montgomery,  5  Mis. 
529. 


(a)  nence  a  new  trial  was  refused,  where  there  was  slight  evidence 
for  the  plaintiff,  and  the  charge  strong  for  the  defendant;  the  verdict 
being  for  the  plaintiff.     Smith  v.  Iluggins,  2  Str.  1142. 


CH.  XIV.]  VERDICT    AGAINST   EVIDENCE.  459 

§  21a.  But  it  is  held  in  numerous  cases,  and  perhaps 
the  weight  of  authority  is  now  to  that  efi'ect,  that  strong 
jpreponderance  of  evidence  against  the  verdict  will  justify 
a  new  trial.^  Especially  where  the  evidence  preponde- 
rates so  strongly  upon  the  losing  side,  and  upon  the  point 
on  which  the  case  must  have  turned,  as  to  force  the  con- 
clusion, that  the  jury  must  have  been  controlled  by  some 
improper  bias.^    (See  §  26.) 

§  22.  Even  in  a  criminal  case,  a  conviction  will  not  be 
disturbed,  unless  there  be  a  decided  preponderance  of 
evidence  in  favor  of  the  prisoner.^  So  held,  upon  the 
evidence  in  a  trial  for  murder,  which  in  some  respects 
was  conflicting."  And  where  the  court  refused  to  grant 
a  new  trial  in  a  criminal  case,  on  this  ground,  and  the 
testimony  was  conflicting ;  such  refusal  was  held  no  ground 
for  a  reversal.' 

§  23.  The  qualification  is  sometimes  attached  to  this 
general  rule,  that  a  new  trial  will  not  be  granted  where 
the  evidence  is  conflicting,  unless  in  case  of  prejudice,  &c., 
on  the  part  of  the  jury.^  Or  in  extreme  or  extraordinary 
cases,  where  it  is  manifest  that  the  jury  have  mistaken 
or  abused  their  trust.^  Or  if  justice  is  done,  and  if  the 
verdict  is  fair,  though  against  the  preponderance  of  testi- 
mony.^   (See  §  26.) 

§  24.  The  same  general  rule,  and  the  prominent  reasons 
for  it,  are  expressed  in  the  proposition,  that,  where  a  jury 
have  passed  upon  the  weight  of  the  testimony,  and  exer- 
cised their  judgment  on  the  truth  or  falsity  of  ivitnesses,  the 

1  Smith  V.  Hicks,  5  "Wend.  48.  «  Tracy  v.  Hartman,  1  Ililt.  350. 

2  Huunewell  u.Hobart,  40  Maine,  ?  Weld  «.  Cliadbourne,  37  Elaine, 
28  221. 

3  People  V.  Ah-Loy,  10  Cal.  301.  »  Coddin<;ton  v.  Carnlcy,  2  Hilt. 
*  Monroe  v.  State,  23  Tex.  210.  528  ;  Branch  v.  Dever,  18  Tex.  Gil; 
5  McLane  v.  State,  4  Geo.  335.        Lofft,  521. 


460  THE    LAW    OF    NEW    TRIALS.  [CH.  XIV. 

verdict  will  not  be  disturbed  as  contrary  to  cvideuce.'(rt) 
That  it  is  the  peculiar  and  exclusive  province  of  the  jury 
to  judge  of  the  credibility  of  witnesses,  and  to  weigh  the 
evidence,  and  the  court  will  not  disturb  the  verdict,  un- 
less the  jury  appear  to  have  found  either  without  or 
againhit  evidence;  and  will  never  set  aside  the  verdict 
as  against  evidence,  merely  because  they  might,  on  an 
examination  of  the  evidence,  have  arrived  at  a  different 
result.^ 

§  25.  On  the  other  hand,  it  is  a  strong  reason  for  grant- 
ing a  new^  trial,  that  there  was  no  conflict  in  the  evidence.^ 
And  more  especially  that  a  verdict  is  contrary  to  all  the 
legal  evidence.* 

§  26.  It  is  another  form  of  the  same  rule,  but  more  spe- 
ciall}'  appertaining  to  the  jury^  that  the  court  will  not 
disturb  a  verdict  alleged  to  be  against  the  weight  of  evi- 
dence, where  the  evidence  has  been  passed  upon  by  the 
jury,  except  in  cases  where  gross  injustice  is  apparent.^  Or 
unless  the  court  can  clearly  see,  that  the  jury  must  have 
unconsciously  fallen  into  some  gross  mistake  in  regard  to 
the  nature  and  force  of  the  evidence,  or  have  been  actuated 

>  Pleasant  v.  State,  15  Ark.  624  ;  ^  lirichart  v.  Downs,  19  Tex.  243. 

Bell  V.  Rinker,  29  Ind.  267.  ^  Bowen  v.  Cook,  5   Eng.    309 ; 

2  Edrhmton  v.  Kigcr,  4  Tex.  89  ;  McKay  v.  Thorincton,  15  loAva,  25. 

People  V.  Ah-Ti,  9  Cal.  16.  ^  Miller  v.  Batlitf,  14  Ark.  419. 

(a)  The  finding  will  not  be  disturbed  when  there  is  a  manifest  conflict 
of  evidence,  though  some  of  the  witnesses  are  interested.  Their  credit 
must  be  determined  in  the  court  below.  Putnam  v.  Lamphier,  36  Cal. 
151.  In  a  late  case  (Crawford  v.  Carpenter,  Leg.  Intell.)  it  is  said,  per 
Hare,  J.,  "  the  note  in  suit  liad  its  origin  in  a  corrupt  and  illegal  trans- 
action, but  a  witness  was  produced  to  prove  that  the  plaintiff  was  a 
bond  fide  holder  for  value.  If  the  jury  had  found  in  opposition  to  his 
testimony,  the  verdict  would  have  been  allowed  to  stand,  that  they 
credited  it  is  certainly  not  a  reason  for  a  new  trial.  They  probably 
thought  that  all  the  parties  were  in  the  same  category,  and  that  justice 
would  best  be  done  by  enforcing  the  letter  of  the  contract." 


CH.  XIV.]  VERDICT    AGAINST    EVIDENCE.  4G1 

by  some  improper  motive  or  bias.^  Or  wantonly  abused 
their  powcr.^  More  especially  where  there  is  a  variety  of 
testimony  on  both  sides,  no  error  in  tlie  law  given,  and 
where  the  fact  was  fairly  before  the  jury,  and  in  their 
province.^  The  preponderance  of  evidence  against  the 
verdict  must  be  so  great  as  to  shock  the  understanding 
and  moral  sense.*  To  evince  gross  injustice,  passion, 
partiality,  or  prejudice.^  It  is  said  in  a  late  case:  "  It  is 
a  power  to  be  invoked  only  when  manifest  injustice  has 
been  done  by  the  verdict,  and  when  the  wrong  is  so  plain 
and  palpable  as  to  exclude  all  reasonable  doubt  of  its  ex- 
istence; indeed,  so  obvious  as  clearly  to  denote  that  some 
mistake  must  have  been  made  in  the  application  of  legal 
principles,  or  to  justify  the  suspicion  of  corruption,  pre- 
judice, or  partiality  in  the  jury."® 

§  27.  With  more  particular  reference  to  the  positive 
and  relative  credit  and  weight  of  witnesses ;  a  new  trial 
will  be  granted,  when  there  is  no  testimony  to  warrant 
the  verdict,  or  when  it  is  against  the  oath  of  the  only 
witness  who  deposed  as  to  the  point  in  question.'  Or 
where  the  evidence  was  all  on  one  side  and  that  against 
the  verdict.^  As  where  fraud  was  found  without  evidence.^ 

§  28.  "Where  a  question  of  fact,  depending  on  the 
opinion  of  witnesses,  more  especially  if  conflicting,  has 
been  passed  upon  by  a  jury,  their  verdict  will  rarely  if 


'  "Williams  v.  Buker,  49  Maine,  *  Powell  v.  Bigley,  14  Geo.  41  ; 

427  ;  Johuson  v.  Winona,  11  Min.  Williamson  v.  Nabers,  ib.  285. 

296 ;  Chicago  v.  Shannon,  43  111.  ^  Thornton  v.  Lane,  11  Geo.  459. 

338  ;  Wilkinson  V.  Greely,  1  Curtis,  ^  Per  Sandford,    J.,    Waters  ^7. 

63  ;  3  W.  &  M.   383  ;   ib.  348  ;   7  Bristol,  26  Conn.  404.    . 

Geo.  209;    Smith   v.   Richards,   4  ?  Tompkins ».  Corry,  14  Geo.  118. 

Shep.  200 ;  Perkins  v.  Attaway,  14  ^  Williams  v.  Brasfield,  9  Yerg. 

Geo.  27.  270. 

2  Carr  r.  Gale,  3  W.  «fe  M.  38 ;  ^  Levingsworth  v.  Fox,  2  Bay, 
Aiken  v.  Bemis.  ib.  348.  520. 

3  Stroud  V.  Mays,  7  Geo.  209. 


462  THE    LAW    OF   NEW    TRIALS.  [CII.  XIV. 

ever  be  diHturbcd.^  Even  although  coupled  with  infer- 
ences of  fact  from  the  conduct  of  the  parties.^  Nor  where 
the  jury  have  acted  within  their  province,  of  weighing 
the  evidence,  and  judging  of  the  credibility  of  the  wit- 
nesses, upon  a  question  of  fact,  though  the  weight  of  evi- 
dence may  seem  to  preponderate  against  the  verdict.^  Nor 
unless  the  verdict  is  clearly  against  the  weight  of  evidence, 
where  there  is  much  contradictory  testimony,  and  where, 
if  one  of  the  witnesses  should  be  discredited,  who  was  not 
impeached,  but  known  to  many  of  the  jury,  the  evidence 
would  be  nearly  balanced.^ 

§  29.  More  especially  where  a  case  turns  upon  the 
weight  of  the  evidence  and  the  credibility  of  the  wit- 
nesses, and  the  jury  has  been  fairly  charged,  and  there  is 
no  such  preponderance  of  evidence  against  the  verdict  as 
to  require  it;  the  judgment  will  not  be  disturbed.'*  Or 
where  there  is  a  conflict  of  testimony,  and  the  jury  choose 
to  discredit  a  witness,  under  proper  instructions."  Or, 
even  in  a  criminal  case,  where  much  depends  upon  the 
character  of  the  witnesses  and  of  the  accused,  and  the 
defence  was  fairly  and  favorably  submitted  to  the  jury.^ 
Though  a  new  trial  is  sometimes  granted  upon  the  ground 
of  credibility,  if  the  verdict  is  also  wrong  upon  the  facts 
of  the  case.^  Thus,  in  an  action  of  book  debt,  the  plain- 
tiff testified,  that  the  goods  were  sold  for  cash  on  delivery, 
deducting  sixty  days'  interest;  the  defendant  testified, 
that  he  bought  them  on  a  credit  of  sixty  days,  telling  the 
plaintiff  that  he  might  want  to  pay  within  that  time, 
and,  if  he  did,  he  should  claim  the  privilege  of  so  doing, 
deducting  the  interest.     The  goods  sold  were  plank,  and 

'  Salmons  v.  Webb,  13  B.  Mon.  *  Feariug  v.  De  Wolf,  3  W.  & 

365  ;  llolden  v.  Bloxum,  35  ]\Iiss.  M.  185. 

381.  5  Cummins  v.  Rico,  19  Tex.  235. 

2  Wood  V.  Gibbs,  35  Miss.  55f>.  °  Bradley  v.  Geiselman,  23   111. 

3  IMitchell  V.  Matson,  7  Tex.  3;  494. 

Keboul  i'.  Cluilker,  27  Conn.  114.  '  llolcombe  v.  State,  28  Geo.  0(5. 

8  ^Vilson  V.  Home,  37  Miss.  477. 


en.  XIV.]  VERDICT    AGAINST    EVIDENCE.  463 

the  defence  was,  that  they  were  not  as  good  as  they  were 
represented.  The  defendant  and  several  witnesses  testified 
that  a  part  were  not  good,  and  the  phaintifF  and  a  like 
number  of  witnesses  that  they  were  a  fair  lot.  Another 
defence  was,  that  there  was  no  acceptance.  The  plank 
were  to  he  delivered  upon  a. certain  wharf,  and  were  all 
actually  delivered.  The  defendant  testified,  that  he  never 
received  them,  but  admitted,  that  he  saw  a  part  of  them 
on  the  wharf,  and  said  nothing  to  the  plaintiff"  about  not 
delivering  the  residue  ;  and  to  one  person  he  said  he  had 
bought  the  plank;  and  to  another,  who  applied  to  him  to 
buy  a  part,  that  he  could  not  spare  any  of  them,  as  he 
intended  to  send  them  away.  Held,  a  verdict  for  the 
plaintiff'  ought  not  to  be  set  aside  as  against  evidence.^ 

§  30.  On  the  trial  of  a  scire  facias  in  foreign  attach- 
ment, wherein  A.  was  plaintiff,  B.  the  original  debtor,  and 
C.  the  trustee  of  D.  under  an  assignment  for  the  benefit 
of  his  creditors,  the  garnishee,  the  defence  was,  that  the 
effects  in  the  hands  of  C,  which  A.  sought  to  recover, 
belonged  to  E.,  and  not  to  B.  The  principal  witness  for 
the  plaintiff"  was  W.,  a  partner  of  E.  His  credibility  was 
assailed  on  the  ground  of  his  interest ;  the  exceptionable 
mode  in  which  he  had  caused  the  claims  against  D.'s  estate 
to  be  presented  to  the  commissioners ;  by  reason  of  his 
management  in  procuring  an  order  from  B.  for  his  divi- 
dend; the  entries  in  the  books  of  the  company  of  which 
he  was  a  member ;  his  want  of  recollection  as  to  facts 
w4iich  it  was  presumable  he  would  remember,  and  some 
other  circumstances  ;  while  his  testimony  was  supported 
by  his  general  good  character  for  veracity,  shown  by  the 
absence  of  any  attempt  to  impeach  it ;  the  want  of  any 
evidence  directly  contradicting  him  ;  the  character  of  the 
facts  relied  upon  against  his  credibility,  as  being  suscep- 
tible of  explanation  ;  and  the  explanations  given  by  him. 

'  Bulkley  v.  Waterman,  13  Conn.  328. 


464  THE    LAW    OF    NEW    TRIALS.  [CH.  XIV. 

These  topics,  with  others  bearing  upon  his  credibility, 
were  fairly  submitted  to  the  jury  and  considered  by  them. 
Held,  a  verdict  for  the  plaintiff,  although  the  court  would 
have  been  better  satisfied  with  a  different  result,  should 
not  be  disturbed.' 

§  31.  The  mere  number  of  witnesses  is  held  insufficient 
ground  for  a  new  trial. ^  More  especially,  where  the  testi- 
mony, given  by  the  smaller  number  of  witnesses,  is  of  a 
less  negative  character  tlian  that  on  the  other  side ;  the 
refusal  of  the  court  to  grant  a  new  trial  is  not  error.^ 

§  32.  But  where,  in  an  action  for  breach  of  warranty 
of  soundness  of  a  slave,  the  proof  was,  that,  shortly  after 
the  sale,  the  slave  was  attacked  with  dysentery,  and  died, 
notwithstanding  careful  treatment,  and  the  attending 
physician  testified,  that,  for  various  reasons  given  by 
him,  he  believed  the  slave  was  of  scrofulous  habit,  and 
died  of  scrofula  existing  before  the  sale,  and  there  was  no 
other  medical  evidence  given;  but,  on  the  other  side,  the 
testimony  of  several  witnesses  was,  that  they  had  known 
the  negro  in  Virginia  for  years,  where  he  was  sound  and 
healthy,  with  no  development  of  scrofula,  and  the  slave 
had  been  brought  from  Virginia  to  Natchez  but  a  few 
months  prior  to  his  death;  and  the  jury  found  for  the 
plaintiff:  the  verdict  was  set  aside,  as  being  against  evi- 
dence, and  a  new  trial  granted.^ 

§  33.  The  question  may  sometimes  turn  rather  upon 
the  relation  of  the  witnesses  to  the  parties,  than  upon 
their  mere  number.  But  where  the  court  instructs  the 
jury  that,  in  weighing  the  evidence,  they  are  to  give  the 
most  weisrht  to  those  witnesses  w4io  are  not  under  the  influ- 


'  Babcock   v.  Porter,  20  Conn.  »  Stewart  v.  Hamilton,  19  Tex. 

570.  9G. 

2  Francis  v.  Baker,  6  Bac.  Abr.  *  James  v.  Herring,  12  S.  &  M. 

664.  336. 


Cir.  XIV.]  YEllDICT    AGAINST    EVIDENCE.  465 

eiice  of  those  biases  which  ordinarily  control  our  feelings 
and  wishes ;  the  Supreme  Court  cannot  infer  that  the  jury 
disregarded  the  charge  of  the  court,  from  the  fact  that 
their  verdict  w^as  in  accordance  with  the  evidence  of  a 
witness,  who  was  the  daughter  of  the  prevailing  party.^ 

§  34.  Where  the  only  witness  for  the  defendant  was  his 
son;  and  the  burden  of  proof  was  upon  the  defendant;  and 
the  jury  found  for  the  plaintiff:  a  new  trial  was  refused.^ 

§  35.  The  same  question  sometimes  turns  upon  the  con- 
nection of  a  witness  with,  or  his  interest  in,  the  parties  or 
the  subject-matter  of  the  suit.  Thus  it  is  held  no  ground 
for  a  new  trial,  that  an  accessory  is  found  guilty  on  the 
testimony  of  the  principal  alone,  although  somewhat 
contradictory  and  inconsistent.^  But  where  the  question 
before  the  jury  was,  whether,  wdien  a  certain  mortgage 
was  recorded,  the  name  of  the  mortgagor  was  placed  on 
the  record  within  the  proper  time,  and  the  certificate  of 
the  recording  ofiicer,  who  was  one  of  the  mortgagees,  that 
such  mortgage  was  recorded,  was  laid  before  the  jury  as 
prima  facie  evidence  thereof;  and,  on  the  other  side,  one 
unimpeached  and  disinterested  witness  swore,  that  he  ex- 
amined the  book,  and  the  signature  was  not  affixed,  and 
another  swore,  that  the  recording  officer  told  him  it  was 
not  there,  within  the  proper  time:  held,  a  verdict,  in 
effect,  that  the  mortgage  was  duly  recorded,  was  so 
strongly  against  the  weight  of  evidence,  as  to  show  that 
there  was  some  improper  bias  or  gross  misapprehension, 
influencing  the  jury,  and  that  to  an  extent  which  "shocks 
both  the  understanding  and  moral  sense,"  and  that  the 
verdict  ought  to  be  set  aside,  and  a  new  trial  granted.^ 

§  36.  Where  it  is  apparent  that  the  jury  must  have  mis- 

»  Fowler  y.Waldrip,  10  Geo.  850.        "Shepherd    v.    Burkhalter,    13 

2  Wait  V.  McNeil.  7  Mass.  261.       Geo.  443. 

3  Keithler  v.  State,  10  S.  tt  M. 
193. 

30 


4GG  THE    LAW    OF   NEW    TRIALS,  [CU.  XIV. 

understood  or  totally  disregarded  the  instructions  of  the 
court  upon  the  evidence,  or  must  have  omitted  properly 
to  consider  the  facts,  and  overlooked  prominent  and  essen- 
tial points  in  the  evidence,  so  that  substantial  justice  has 
not  been  done ;  the  verdict  will  be  set  aside.'  Or  where  the 
verdict  is  so  against  the  evidence,  as  to  show  that  the  facts 
were  not  understood.'  So  where  it  appeared  probable,  that 
the  jury  rejected  from  their  consideration  certain  evidence, 
which,  if  allowed  its  proper  weight,  would  have  materially 
changed  the  verdict.^  Or  where  the  court  are  of  opinion, 
that  the  jury  could  not  have  weighed  the  evidence,  in 
reference  to  the  only  material  question  in  the  issue.^ 

§  37.  Where  some  testimony  is  given  to  the  jury,  tend- 
ing to  prove  a  fact,  it  is  competent  for  them  to  find  that 
such  fact  existed ;  and  their  verdict  ought  not  to  be  dis- 
turbed, unless  very  clearly  against  the  weight  of  evidence.^ 
Thus  a  new  trial  will  not  be  granted,  merely  because  the 
evidence  was  suspicious.'^  So,  the  only  question  being  the 
identity  of  a  slave  sued  for,  and  the  plaintiiF  having  pro- 
duced evidence  conducing  to  prove  this  identity,  and  the 
defendant  having  introduced  no  rebutting  evidence ;  the 
jury  were  held  to  be  warranted  in  finding  a  verdict  against 
him.^  So  a  witness,  who  packed  goods,  testified  that  they 
were  jjut  up  in  such  a  manner  that  they  could  not  be  in- 
jured, except  from  neglect,  and  also  testified  that  they  had 
been  damaged  by  the  conduct  of  the  carrier  to  the  amount 
of  at  least  $200.  There  was  no  objection  made  to  this 
general  mode  of  estimating  the  damages.  The  evidence  on 
another  material  point  was  conflicting,  with  perhaps  a  pre- 
ponderance against  the  verdict.    A  new  trial  was  refused.^ 

•  Wcndall  v.  Safford,  13  N.  II.  «  Court,  &c.  v.  Sprague,  3  R.  I. 

171  ;  Thomas  v.  Hatch,  3  Sumn.  205, 

170;  Franklin  Bank  v.  Small,  26  ^  Holman  v.  Dord,  12  Barb.  336. 

Maine,  13G.  ^  Bdk  v.  jMassey,  11  IJich.  G14. 

^  Bangor  ».Brunswick,27 Maine,  ^  Yarbrough  v.  Arnold,  20  Ark. 

351.  592. 

3  Franklin  Bank   «.    Small,   26  ^  Hall  v.  Morrison,  20  Tex.  179. 
Maine,  136. 


en.  XIV.]  VERDICT    AGAINST    EVIDENCE.  467 

§  38.  But  a  new  trial  will  be  granted,  where  a  verdict 
has  been  rendered  upon  very  vague  and  uncertain  proof, 
more  especially  if  it  is  apparent  that  better  evidence  can 
be  obtained.^  Thus  in  an  indictment,  alleging  a  former 
conviction,  the  absence  of  proof  of  the  identity  of  the 
party,  though  not  expressly  denied,  is  ground  of  new 
trial.^  So,  in  an  action  upon  a  bond,  the  defendant  relied 
upon  a  release,  and  produced  an  instrument  purporting  to 
be  one,  attested  by  A,  and  B.  A.  was  called  as  a  witness, 
but  B.  was  not.  Two  witnesses  testified,  that,  on  the  day 
when  A.  swore  to  the  execution,  the  plaintiff  and  the 
witnesses  were  at  a  place  thirty  miles  from  the  place  of 
execution,  all  day,  and  that  in  their  belief  the  signature 
was  not  the  plaintiff's,  his  handwriting  being  known  to 
them.  A  witness  swore,  that  the  defendant  said  he  would 
be  defaulted,  and  did  not  pretend  to  have  a  release.  In 
reply,  the  defendant  produced  several  witnesses  to  the 
plaintiff's  handwriting.  Verdict  for  the  defendant.  The 
court  were  clearly  of  opinion  that  there  should  be  a  new 
trial,  inasmuch  as  B.  was  not  called.^  So  an  agent  of  a 
bank  presented  to  B.,  a  member  of  a  firm,  an  account  for 
money  alleged  to  have  been  advanced  to  the  firm,  and 
requested  payment.  B.  looked  at  the  account,  and  said 
that  the  firm  had  some  money  then  in  the  house,  which 
he  could  pay  on  the  account,  but  he  would  rather  the 
agent  would  wait  a  few  days,  until  his  (B.'s)  father,  a 
member  of  the  firm,  returned  home ;  and  no  objection 
was  made  by  B.  to  the  account.  Held,  not  a  sufiicient 
admission  by  B.  of  the  correctness  of  the  account,  to 
uphold  a  verdict  in  favor  of  the  plaintiff.* 

§  39.  Disregard  by  the  jury  of  evidence  not  very  per- 
tinent or  forcible,  though  unrebutted,  is  not   sufiicient 

1  Flemming  v.  Hammond,  19  »  Norris  v.  Freeman,  3  Wils.  38. 
Geo.  145  ;  Gibson  v.  Hill,  23  Tex.  »  Miller  v.  Northern,  &c.,  28 
77.  Miss.  81. 

2  Com.  v.  Brigffs,  5  Pick.  429. 


468  THE    LAW    OF    NEW    TRIALS.  [CIL  XIV. 

reason  for  setting  aside  the  verdict.^  And  where  the 
l)iirdeu  of  proof  is  upon  u  i>arty,  but  sustained  by  no  evi- 
dence, the  court  may  order  a  verdict  against  him.^  And 
wdiere  the  evidence  as  to  the  existence  of  a  material  fact 
can  only  raise  a  hare  conjecture^  the  case  should  not  be 
submitted  to  the  jury.^ 

§  40.  It  is  ground  of  new  trial,  that,  where  there  was 
no  conflict  in  the  evidence,  but  the  testimony  clearly 
showed  a  cause  of  action  on  the  part  of  the  plaintiff;  the 
verdict  of  the  jury  was  for  the  defendant.*  As  where  the 
defendant,  in  anger,  said  to  the  plaintiff",  "You  are  a 
damned  old  cow  thief,"  a  number  being  present ;  and  in 
an  action  for  slander,  no  evidence  being  given  for  the  de- 
fendant, a  verdict  was  returned  in  his  favor.''  So  where, 
in  an  action  on  a  bond,  the  plaintiffs  proved,  by  two  wit- 
nesses, that  they  were  acquainted  with  the  handwriting 
of  the  defendant,  and  believed  the  body  of  the  bond  sued 
on,  and  the  signature,  were  in  his  handwa'iting ;  and  also 
proved  that  the  defendant  had  acknowdedged  the  debt  in 
two  letters ;  but  the  jury  returned  a  verdict  for  the  de- 
fendant.** So  where,  in  replevin,  there  is  no  evidence  as 
to  the  value  of  the  property  delivered  to  the  plaintiff' 
under  the  writ,  and  a  verdict  has  been  rendered  for  the 
defendant,  assessing  the  value.^  So  when  a  person,  who 
actually  occupies  a  portion  of  a  tract  of  land,  claims  con- 
structive possession  of  the  whole,  and  brings  a  suit  for 
the  whole,  against  one  who  has  fenced  the  whole  tract  and 
put  a  house  on  a  part  of  it,  and  a  verdict  is  found  for  the 
defendant ;  it  will  be  set  aside  as  being  contrary  to  the 
evidence,  in  including  the  premises  actually  occupied  by 
the  plaintiff".^     So  where,  in  an  action  for  money  loaned, 

'  Fowler  v.  Burdett,  20  Tox.  34.  ^  Yarborougli  v.  Tate,  14   Tex. 

2  Dame  v.  Dame,  20  N.  II.  28.  483. 

'  Matthis  V.  IMattliis,    3    Jones,  '•  Auderson  v.  Wilburn,  3  Eng. 

132.  155. 

'  Fish  V.  Skut,  21  Barb.  333.  See  <  Bailey  v.  Ellis,  21  Ark.  488. 

Ilillebraut  v.  Ashworth,   18   Tex.  s  j^jie  x,  Tubbs,  23  Cal.  431. 
307. 


CII.  XIV.]  VERDICT    AGAINST   EVIDENCE.  469 

the  loan  is  proved  by  a  witness  who  is  not  impeached,  and 
whose  testimony  is  unexplained  and  uncontradicted ;  and 
the  jury  find  for  the  defendant.^  Or,  in  case  of  similar 
result,  where  the  testimony  failed  to  establish,  that  the 
deed  to  the  lot  in  controversy  was  ever  executed  by  the 
plaintiff";  no  witness  testifying  to  his  signature,  or  to  that 
of  the  subscribing  witnesses,  and  the  defendant  offering 
in  evidence  statements  of  the  plaintiff',  as  a  witness  in 
another  suit,  that  he  had  never  executed  any  deed,  and 
that  the  lot  was  his  property.^  So  where  the  plaintiff' 
proves  the  contract  as  declared  on,  and  a  verdict  is  given 
for  the  defendant,  a  new  trial  will  be  granted,^  Or  where 
the  verdict  is  in  favor  of  the  defendant,  and  there  was  no 
evidence  applicable  to  the  issue  made  by  the  pleadino-s  in 
his  favor,  but  there  was  evidence  in  the  plaintiff''s  favor.* 
So  where  a  trespass  for  beating  a  slave  had  been  clearly 
proved,  and  without  any  legal  justification  the  jury  found 
a  verdict  for  the  defendant.'  And  on  the  other  hand, 
where  the  charges  in  an  indictment  clearly  make  out  the 
crime,  and  there  is  evidence  to  every  material  one,  a  new 
trial  will  not  be  granted,  on  the  ground  that  the  proof 
was  insufl&cient.^  So  in  a  suit  for  board,  where  the  testi- 
mony showed  that  some  part  of  it  was  due,  but  it  was 
uncertain  as  to  the  remainder;  held,  the  jury  should  find 
a  verdict  at  least  for  the  amount  certain.^  So  if  there 
was  some  evidence  of  a  special  contract,  and  the  jury 
found  the  fact,  it  being  fairly  submitted  to  them,  it  is 
conclusive.^ 

§  41.  But  in  an  action  brought  b}^  a  railroad  corpora- 
tion against  the  owner  of  cows,  for  suffering  them  to  be 


'  Sweaney  v.  Bledsoe,  8  Humpli.  ^  Grlmke  v.  Houseman,  1   Mc- 

613.  Mullau,  131. 

2  Baker  v.  Cook,  13  Tex.  80.  e  Winfield  v.  State,  3  Iowa,  339. 

3  Benedict  v.  Lawson,    5   Pike,  '  Belcher  v.  Grey,  10  Geo.  208. 
514.  s  Baitlett  v.  Kingan,  19   Peun. 

1  Hampton  v.  Thomas,  11   Geo.  341. 
317. 


470  THE   LAW    OF   NEW    TRIALS.  [CH.  XIV. 

upon  tlio  track,  and  tliereby  causing  a  serious  accident, 
the  i  luy  loll  1 1(1  a  verdict  for  the  defendant.  Held,  although 
the  facts  showed  gross  negligence  in  the  defendant,  suffi- 
cient to  lead  to  the  conclusion  that  a  verdict  in  his  favor, 
unless  justified  on  other  grounds,  must  arise  from  mis- 
take, misapprehension,  or  improper  motive;  yet,  as  there 
was  some  evidence  of  negligence  in  the  plaintills,  the 
verdict  should  not  be  set  aside.^ 

§  42.  And  it  is  not  proper  for  a  jury  to  assess  the  value 
of  property  or  of  services  rendered,  without  some  evidence 
to  justify  a  verdict.^  So  a  verdict  for  the  plaintiff's,  in 
assumpsit  for  money  collected  by  an  attorney,  the  intes- 
tate of  the  defendants,  was  set  aside,  the  evidence  only 
showing  that  the  disputed  sum  had  been  paid  to  an  officer, 
but  none  being  given  to  show  that  it  had  reached  the  in- 
testate.3  go  where  the  plaintiff"  claimed  a  balance  of  pur- 
chase-money, and  his  deed  contained  the  usual  receipt  for 
the  consideration,  and  he  failed  to  rebut  it  by  other  evi- 
dence.'' So  in  an  action  for  injury  caused  by  explosion  of 
a  boiler,  where  there  was  very  slight  evidence  of  negli- 
gence in  the  defendants,  the  manufacturers  of  the  boiler, 
and  the  verdict  for  the  plaintiff'  seemed  to  be  founded 
almost  wholly  upon  the  mere  fact  of  the  explosion  itself; 
a  new  trial  was  ordered.* 

§  43.  More  especially  will  a  verdict  for  the  plaintiff", 
founded  upon  doubtful  or  insufficient  evidence,  be  set 
aside,  where  it  is  met  by  evidence  on  the  part  of  the  de- 
fendant. Thus,  in  an  action  by  a  clerk  against  his  em- 
ployer, the  plaintiff"  proved  the  time  of  his  services,  with- 
out any  evidence  of  their  actual  value ;  that  the  defendant 
had  said  he  would  as  soon  have  the  X)laintiff"  as  any  clerk 

•  Housatonic,  &c.   v.   Knowlcs,  <  Lloyd  v.  Newell,  3  Ilalst.  296. 

30  Conn.  313.  ^  Beers    v.  Woodruff,    &c.,    30 

2  Parr  v.  Gibbons,  27  Miss.  375.  Coun.  308. 

3  Hall  V.  Wight,  9  liich.  392. 


CH.  XIV.]  VERDICT   AGAINST   EVIDENCE.  471 

he  ever  had;  and  the  usual  price  paid  to  clerks.  The 
defendant  proved,  that  he  had  well  clothed  and  fed  the 
plaintiff  during  the  time,  and  that  he  was  very  feeble  in 
health,  and  had  said  he  worked  for  his  l)oard  and  clothes. 
It  appeared,  also,  that  he  sometimes  took  money  for 
spending  without  keeping  an  account  of  it.  The  jury 
found  for  the  plaintiff,  and  the  verdict  was  set  aside,  as 
against  evidence.^  So  where,  in  trover  for  a  horse,  bought 
by  A.,  claiming  under  a  bill  of  sale  against  B.,  the  ques- 
tion was,  whether  A.  accepted  the  bill  of  sale,  and  agreed 
to  the  terms  proposed,  and  it  was  proved  by  two  witnesses 
that,  when  the  bill  of  sale  was  left  at  A.'s  house,  she  said 
nothing,  but  took  the  horse,  and  used  him  occasionally, 
declaring,  however,  that  she  took  him  on  trial,  and  not 
as  her  property ;  declaring  afterwards,  repeatedly,  that  she 
had  not  indorsed  the  price  upon  her  note,  and  never 
would ;  expressing  also  her  determination  not  to  take  any 
horse,  unless  she  could  have  another  which  she  preferred ; 
and  the  testimony  of  these  witnesses  was  uncontradicted, 
and  corroborated  by  other  witnesses:  it  was  held  that 
this  testimony  fully  established  the  fact,  that  A.  never 
consented  to  receive  the  horse  on  the  terms  proposed; 
and,  the  jury  having  found  otherwise,  the  verdict  was  set 
aside,  as  against  evidence.^ 

§  44.  A  new  trial  may  be  granted,  where  a  verdict  is 
rendered  for  the  plaintiff,  notwithstanding  clear  and  un- 
contradicted evidence  to  sustain  the  defence.  Thus  the 
plaintiff's  horse,  in  passing  over  the  defendants'  toll-bridge, 
was  injured,  in  consequence  of  the  displacement  of  a  plank 
in  the  floor.  The  defendants  offered  testimony,  whiftti 
was  uncontradicted,  that  the  bridge  was  substantially  and 
properly  erected,  but  that  it  was  the  duty  of  their  gate- 
keeper, whenever  planks  were  unsafe,  to  put  others  in 
their  places,  and  that  he  daily  crossed  the  bridge  four 

'  McQueen  v.  Bostwick,  12  S.  &        ^  Yale  v.  Yale,  13  Conn.  185. 
M.  604. 


472  THE    LAW    OF    NEW    TllIALS.  [CII.  XIV. 

times,  in  sucli  manner  that  lie  could  sec  the  entire  floor, 
and  liad  crossed  it  before  the  accident  occurred,  and  on 
the  same  day.  Ilehl,  a  verdict  for  the  plaintiff  was  against 
the  Aveight  of  evidence.^  So  A.,  in  an  action  against  B. 
for  board,  proved  that  B.  lived  with  him  during  the  time 
alleged, and  that  her  board  w^as  w^orth  the  amount  charged. 
B.  introduced  a  like  number  of  witnesses,  and  proved  that 
her  services  and  those  of  two  negro  boys  belonging  to 
her,  and  the  use  by  A.  of  articles  belonging  to  her,  were 
worth  fully  as  much  as  her  board;  that,  after  bringing 
the  suit,  A.  wrote  to  B.,  asking  her  forgiveness,  and 
l)romising  that  he  would  stop  the  suit  if  she  would 
forgive  and  come  back,  and  inviting  her  to  come  back 
and  live  as  she  had  done  before.  The  jury  having  ren- 
dered a  verdict  for  A.,  the  court  refused  to  interfere 
with  the  discretion  of  the  circuit  judge  in  granting  a 
new  trial.^(rt) 

•  Beechor  v.  Derby,  &c.,  24  2  porker  «.  Walden,  IG  Geo.  27. 
Conn.  132. 

(a)  Where  there  was  an  entire  deficiency  of  evidence  to  sustain  the 
plaintifiF's  allegations,  and  a  judgment  in  his  favor,  a  new  trial  should  be 
granted.  Eowe  v.  Collier,  25  Tex.  252 ;  Brooks  v.  Clifton,  22  Ark.  54. 
A  verdict  for  the  plaintiff,  in  an  action  for  unsoundness  of  a  horse  pur- 
chased of  the  defendant,  was  set  aside,  where  there  was  no  proof  of  a 
warranty,  express  or  implied,  and  no  proof  of  any  disease  known  to  the 
seller  which  he  did  not  communicate  to  the  buyer.  Nickle  v.  William- 
son, 44  111.  48.  In  an  action  for  labor,  a  judgment  for  the  plaintiff  will 
be  set  aside,  unless  the  record,  purporting  to  give  the  whole  evidence, 
shows  some  evidence  that  he  was  in  the  employ  of  the  defendant,  and 
that  something  was  due  therefor.  Union  v.  Convers,  4  Kans.  20G.  In 
an  action  on  a  note,  the  defence  of  infancy  was  fully  and  completely 
established  by  two  witnesses,  and  there  was  no  evidence  to  contradict  or 
avoid  this  defence.  The  jury  found  for  the  plaintiff.  Held,  under  ?  264 
of  the  (N.  Y.)  Code,  the  verdict  could  properly  be  set  aside  "for  in- 
suflRcient  evidence  ;"  that  this  term  should  be  construed  with  reference 
to  the  actual  issue  on  which  the  jury  were  to  pass,  and  it  was  immate- 
rial that,  if  the  defendant  had  offered  no  evidence,  the  plaintifi"  would 
have  been  entitled  to  a  verdict.  Algeo  v.  Duncan,  39  N.  Y.  313.     In  an 


CII.  XIY,]  VEKDICT   AGAINST   EVIDENCE.  473 

§  45.  Questions  arise,  where  the  evidence  in  the  case  is 
circumstantial  or  presumptive.  Thus  a  new  trial  will  not 
be  granted,  even  in  a  criminal  case,  merely  because  the 
court  think  they  should  have  found  a  different  verdict  on 
the  evidence,  where  the  evidence  was  of  a  circumstantial 
character.^  Or,  in  general,  merely  because  a  conviction 
was  obtained  upon  circumstantial  evidence  only ;  though 
such  evidence  should  be  received  with  great  caution. ^  So 
where  the  defence,  to  an  action  on  a  bill  single,  was  pre- 
sumption of  payment  by  lapse  of  time ;  it  was  held  to  be 
a  defence  so  purely  for  the  consideration  of  the  jury,  that 
a  very  clear  case  of  erroneous  finding  must  be  shown,  to 
warrant  its  being  set  aside.^  So,  on  appeal,  where  the 
testimony  is  circumstantial,  presenting  questions  pecu- 
liarly proper  for  the  consideration  of  a  jury,  and  anything 
on  the  record  tends  to  support  the  verdict.^  And,  in 
general,  in  a  civil  cause,  the  verdict  of  the  jury  will  not 
Ibe  set  aside,  if  it  be  sustained  by  a  legal  presumption,  not 
countervailed  by  the  proof.^  As  where  the  plaintiff  relied 
upon  circumstances,  which  the  defendant  rebutted  b}^  cir- 
cumstances, and  by  evidence  of  the  plaintiff's  admissions, 
and  prevailed.^(rt) 

'  Grayson  ».  The  Commonwealth,  ■•  Young  v.  Silkwood,  11  111.  36. 

6  Gratt.  713  ;  Browning  v.  State,  ^  Swaggerty  v.  Stokley,  1  Swan, 

&c.,  33  Miss.  47  ;  Morrison  v.  Mc-  38.     See  Price  v.  Evans,'  4  B.  Mon. 

Kinnon,  13  Flori.  553.  386. 

2  United  States  v.  Martin,  3  Mc-  e  De  Fonclear  v.  Shottenkirk,  3 
Lean,  356.  John.  170. 

3  Mann  v.  Manning,  13  S.  &  M. 
615. 

action  against  a  railroad  for  the  value  of  a  cow  killed  by  a  train,  on 
proof  that  when  found  she  was  lying  on  her  back  in  the  ditch  two  feet 
from  the  track,  bloated,  and  the  blood  oozing  from  her  nose,  but  with  no 
other  external  marks  of  injury;  the  jury  found  that  her  death  was 
caused  by  a  passing  train.  Held,  the  verdict  should  stand.  Chicago  v. 
Dement,  44  111.  74. 

(a)  A  verdict  for  a  tenant  claiming  title  by  twenty  years'  possession 
cannot  be  sustained,  without  evidence  that  his  possession  was  adverse. 
Eaton  V.  Jacobs,  49  Maine,  559. 


474  THE   LAW    OF   NEW    TRIALS.  [CII.  XIV. 

§  46.  iSIore  especially  the  verdict  will  not  be  set  aside 
"  ill  a.  hard  action^  where  there  is  something;  on  which  the 
jury  have  raised  a  presumption  agreeably  to  the  justice 
of  the  case."  Thus  in  an  action  upon  a  note,  given  in 
consideration  of  the  plaintiff's  marrying  the  defendant's 
daughter,  the  defence  was,  that  the  marriage  was  illegal, 
the  plaintiff  being  a  minor,  and  no  consent  of  parents  or 
guardians.  It  also  appeared,  that,  when  the  plaintiff 
came  of  age,  his  wife  was  in  extremis,  and  died  in  three 
weeks.  The  judge  left  it  to  the  jury  to  presume  a  subse- 
quent legal  marriage,  and  they  found  for  the  plaintiff.^ 

§  47.  But,  on  the  other  hand,  where  the  testimony  in- 
troduced by  the  defendant,  to  prove  the  want  or  illegality 
of  consideration  of  a  note,  is  circumstantial  or  presump- 
tive, and  the  jury  find  against  the  testimony,  their  ver- 
dict will  not  be  disturbed.^ 

§  48.  Where  evidence  is  both  circumstantial  and  con- 
flicting, the  rule  is  more  especially  adopted,  that  a  new 
trial  will  not  be  granted.^  Or  where  the  credibility  of 
witnesses  is  to  be  considered,  presumptions  are  to  be  made, 
and  where  the  nature  of  the  evidence  is  such  that  different 
persons  might  reasonably  have  different  impressions  con- 
cerning it.^  Thus,  where  a  verdict  is  supported  by  the 
well-proved  declarations  of  the  losing  party,  and  the  evi- 
dence against  it  is  inconsistent  with  itself,  it  must  gene- 
rally stand.'  So,  in  an  action  for  the  price  of  brick-work, 
where  the  defence  was  worthlessness  of  the  work,  it  ap- 
peared that  the  materials  were  the  same  agreed  upon,  and 
that  the  work  was  allowed  to  stand  for  six  months  exposed 
to  the  weather  and  other  injurious  circumstances.  Held, 
the  jury  were  justified  in  inferring  that  the  "worthless- 

1  Wilkinson  v.  Payne,  4  T.  R.  <  Wendell  v.  Safford,  13  N.  H. 
408.  171. 

2  Holton  V.  Adcock,  37  Miss.  758.  *  Goodwyu  v.  Goodwyn,  39  Geo. 

3  Lisbon  v.  Batli,  3  Fost.  1.  225. 


CH.  XIV.J  VERDICT   AGAINST   EVIDENCE.  475 

ness"  was  caused  by  the  subsequent  exposure.^  So  it  was 
in  evidence,  that  houses,  part  of  the  estate  of  a  person 
deceased,  were  repaired  by  the  plaintiff,  a  carpenter,  under 
the  general  superintendence  of  the  defendant,  the  widow 
of  the  deceased,  during  her  occupancy  tliereof,  and  were 
subsequently  assigned  to  her  for  dower.  Upon  present- 
ment of  the  bill  to  her  for  payment,  she  neither  disputed 
her  liability,  nor  objected  to  the  amount,  but  said  "it 
would  be  paid  when  the  administrator"  arrived.  Upon 
verdict  and  judgment  against  her,  it  was  held  that  the 
jury  might  well  have  inferred  an  implied  contract  by  her 
with  the  plaintiff"  for  the  work,  and  a  promise  to  pay 
therefor,  and  the  judgment  was  affirmed.^  So,  where  pro- 
missory notes  and  the  transfer  of  stock  between  the  same 
parties  correspond  exactly  in  dates  and  amount,  and  there 
is  no  other  evidence  of  the  consideration  of  the  notes; 
this  will  be  sufficient  to  support  a  verdict,  finding  the 
transfer  of  stock  to  be  the  consideration  of  the  notes.^ 
So,  the  question  in  controversy  being,  whether  a  certain 
execution  was  paid  by  one  of  the  execution  debtors,  it 
was  proved,  among  other  evidence,  that  the  money  was 
offered  to  the  creditor,  and  no  fact  was  proved  inconsistent 
with  the  supposition  of  its  being  accepted.  The  court 
submitted  the  question  upon  the  evidence  to  the  jury, 
who  found  that  the  execution  had  been  so  paid.  Held, 
the  verdict  should  not  be  set  aside  as  against  evidence.* 
So  a  verdict  will  not  be  set  aside  as  against  the  weight 
of  evidence,  where  the  witnesses  on  one  side  satisfactorily 
prove  that  a  dam  has  not  been  raised,  and  those  on  the 
other  prove  that  the  water  in  the  pond  is  higher ;  when 
the  raising  of  the  water  can  be  accounted  for  by  other 
alterations  in  the  dam  besides  its  being  raised.^ 


'  Collins  V.  Money,  4  How.  Mis3.  ■»  Johnson  v.  Hebard,  13  Conn. 

11.  337. 

2  White  V.  Barton,  10  Humph.  s  Morris  Canal  Co.  v.  Seward,  3 
329.  Zabr.  219. 

3  Barringer  v.  Nesbit,  1  S.  &  M. 
22. 


476  THE   LAW    OF   KEW    TRIALS.  [CH.  XIV. 

§  40.  But,  on  the  other  hand,  a  new  trial  was  granted, 
where  the  verdict  sustained  a  conveyance  made  by  a 
fiither,  in  insolvent  circumstances,  to  his  son,  who  had 
just  arrived  at  the  agio  of  twenty-one,  had  no  previous 
means,  and  was  in  ill  health  and  of  indolent  liahits.^  So 
where  one  testified  that  he  was  not  a  partner,  hut  stated 
facts  which  with  other  evidence  showed  the  contrary,  but 
the  jury  found  that  he  was  not.^ 

§  50.  The  court  has  authority  to  grant  a  new  trial  on 
the  ground  that  a  verdict  is  against  evidence,  though  the 
evidence,  in  whole  or  in  part,  was  derived  from  inspection.^ 
The  court  say:  "The  autliority  of  the  court  to  set  aside 
a  verdict  does  not  depend  upon  the  nature  or  quality  of 
the  evidence  upon  which  the  jury  liave  found  it;  though 
it  often  liappcns  that  the  character  of  the  evidence  is  such 
as  to  ailbrd  the  jury  much  better  means  of  judging  of  it 
than  the  court  can  have  of  reviewing  it ;  as  wdiere  much 
depends  upon  localities,  and  the  jury  have  a  view;  or 
•upon  minute  circumstances,  and  there  is  conflicting  testi- 
mony ;  or  upon  the  credit  of  a  witness,  who  is  strongly 
impeached  by  one  set  of  witnesses,  and  supported  by 
another."^ 

§  51.  A  new  trial  was  refused,  where  the  case  turned 
upon  certain  language  used  by  a  party,  and,  if  slightly 
varying  from  the  words  testified  to,  it  would  justify  the 
verdict.'^  And,  on  the  other  hand,  in  an  action  for  slander, 
uttered  in  a  ball-room,  where  there  was  dancing  and  music, 
and  a  fracas^  with  much  confusion,  three  witnesses  testi- 
fied positively  to  the  words,  and  eleven,  who  were  in  the 
room,  that  they  did  not  hear  them,  and  in  their  opinion 

>  Eveleth  t.  Harmon,  33  Maine,  ^  Davis  v.  Jenney,  1  Met.  321. 

275.  *  Per  Shaw,  C.  J.,  Davis  v.  Jen- 

iReboul  V.  Chalker,  27  Conn,  ney,  1  Met.  222. 

114.     See  Kellogg  v.  Budloug,  7  ^  Harding  t'.  Brooks,  5  Pick.  244. 
How.  Miss.  340. 


CH.  XIV.]  VERDICT    AGAINST    EVIDENCE.  477 

sboukl  have  heard  them  if  spoken.     A  verdict  for  the 
defendant  was  set  aside.^ 

§  52.  Tlie  question  lias  sometimes  arisen,  whether  a 
second  verdict,  in  favor  of  the  party  who  prevailed  at  a 
former  trial,  may  be  set  aside  as  against  evidence. 

§  53.  In  a  late  case  in  England,  involving  no  question 
of  law,  the  plaintiff's  claim  was  supported  almost  exclu- 
sively by  his  own  testimony,  and  was  encountered  by  cir- 
cumstantial evidence  on  the  part  of  the  defendant.  A 
common  jury  having  found  for  the  plaintiff,  a  new  trial 
was  granted  on  the  disclosure  by  affidavits  of  fresh  evi- 
dence. At  the  second  trial  this  evidence  was  adduced, 
but  the  jury  (a  special  one)  found  for  the  plaintiff.  The 
judge  certifying  to  the  court  in  writing  that  the  verdict 
was  "a  very  wrong  verdict,"  the  court  granted  a  third 
trial  on  the  ground  of  its  being  against  the  weight  of  evi- 
dence.^ So  where,  in  a  scire  facias  upon  foreign  attach- 
ment, the  plaintiff,  who  claimed  an  indebtedness  of  the 
defendants  under  a  contract  signed  by  them,  as  a  building 
committee  of  a  Congregational  society,  obtained  a  verdict, 
which  was  set  aside,  on  the  ground  that  such  contract 
showed  an  indebtedness  of  the  society,  and  not  of  the  de- 
fendants; and,  on  a  new  trial,  the  plaintiff  claimed  an 
indebtedness  of  the  defendants,  independently  of  such 
contract,  and  for  w^hich  they  were  personally  liable,  in 
support  of  which  claim  she  introduced  in  evidence  certain 
supposed  admissions  of  the  defendants  of  their  liability 
to  the  original  debtor,  but  which  admissions  were  not 
inconsistent  with  the  claim  that  they  were  such  agents, 
and  which  they  contended  were  made  in  that  capacity ; 
and,  further,  it  was  not  satisfactorily  proved  that  such 
society  was  indebted  to  the  original  defendant,  and  there- 
upon a  verdict  was  again  rendered  In  favor  of  the  plain- 

'  Johnson  v.  Scribuer,  6  Conn.  ^  Davies  v.  Roper,  33  Eng.  Law 
185.  and  Eq.  511. 


478  THE    LAW   OF   NEW    TRIALS.  [cn.  XIV. 

tiff:    held,  ?siieli  verdict  ought  to  be  set  aside,  as  being 
against  the  evidence.^ 

§  54.  A  third  verdict  has  been  set  aside  and  a  new  trial 
ordered,  because  the  verdict  was  wholly  unsupported  by 
the  evidence.^ 

§  55.  But,  in  a  case  where  there  were  witnesses  on  both 
sides,  the  jury  gave  their  verdict,  and  the  judge,  consider- 
ing it  as  against  evidence,  returned  the  jury  to  a  second 
and  third  consideration  of  the  case,  but  they  adhered  to 
the  verdict.  The  judge,  on  motion,  stated  the  evidence, 
and  fave  his  opinion  against  the  verdict.  But  a  new 
trial  was  refused.^  So  where  the  evidence  was  so  contra- 
dictory that  on  a  former  trial  the  jury  could  not  agree.^ 
So  although  (upon  a  point  of  usage),  "  the  evidence  to 
establish  such  usage  is  entirely  defective,  while  the  charge 
of  the  judge  was  perhaps  calculated  to  make  an  impres- 
sion upon  the  jury,  that  there  was  competent  and  suiRcient 
evidence  of  such  usage  ;"  the  verdict  being  in  favor  of  the 
usage,  and  there  having  been  two  previous  verdicts  the 
same  way,  one  of  which  was  set  aside  for  misdirection, 
the  other  as  against  evidence;  and  the  evidence  being 
voluminous  and  conflicting.^  So  where  the  burden  of 
j)roof  was  on  the  party  complaining;  the  jury  had  twice 
disagreed;  the  judge  was  satisfied  with  the  result;  and 
there  had  been  two  former  verdicts;  one  for  the  plaintiff, 
the  other  for  the  defendant :  a  new  trial  was  refused.''  So 
where  one  verdict  was  set  aside,  because  the  court  thought 
that  the  principal  witness  was  entitled  to  little  or  no 
credit ;  and,  on  the  new  trial,  additional  testimony  having 
been  introduced  on  each  side,  a  similar  verdict  was  re- 
turned: the  court  refused  to  set  aside  the  second  verdict 

1  Hewitt  i\  Wheeler,  23  Conn.  ^  Fowlor  v.  The   Etna,    &c.,    7 

284.  Wend.  270. 

^2  Means  v.  Means,  6  Rich.  1.  ^  Johnson  v.  Blanchard,  5  R.  I. 

3  Pahner  v.  Hyde,  4  Conn.  42G.  24. 

1  Baker  v.  Briggs,  8  Pick.  122. 


CH.  XIV.]        •         VERDICT   AGAINST   EVIDENCE.  479 

as  against  the  weight  of  evidence.^  So,  after  four  exami- 
nations of  the  facts  in  a  case,  before  the  courts  below,  in 
three  of  which  the  same  finding  was  approved ;  the  Su- 
preme Court  will  not  overrule  these  adjudications  without 
the  clearest  conviction  of  their  error.^ 

§  56.  In  a  late  and  important  case  it  is  held,  that  where, 
in  an  action  for  the  price  of  goods  sold,  the  evidence  of  a 
delivery  and  acceptance,  sufficient  under  the  statute  ot 
frauds,  is  so  slight,  that  the  court  would  set  aside  any 
number  of  verdicts  for  the  plaintiff,  Mies  quoties  ;  it  is  the 
duty  of  the  judge  to  withdraw  the  case  from  the  jury, 
and  an  exception  lies  to  his  refusal  to  do  so.  On  the  other 
hand,  if  the  evidence  is  such,  that,  though  one  or  two 
verdicts  rendered  upon  it  would  be  set  aside  on  motion, 
yet  a  second  or  third  verdict  would  be  suffered  to  stand ; 
the  cause  should  not  be  taken  from  the  jury,  but  should 
be  submitted  to  them  under  instructions.2(a) 

§  57.  Where  a  motion  is  made  for  a  new  trial,  upon  the 
ground  that  the  facts,  which  the  plaintiff's  whole  evidence 

'  Handley  c.  Call,  30  Maine,  9.  3  Denny  v.  Williams,  5  Allen,  1. 

2  Eastman  «.  Wight,  4  Ohio  (N. 
S.),  156. 

(a)  The  fact,  that  two  concurrent  verdicts  have  been  given  for  the  de- 
fendant, does  not  affect  the  right  of  the  plaintiff  to  a  new  trial,  when 
the  verdict  is  clearly  against  the  law  and  the  evidence.  Monroe  v.  Broad- 
field,  30  Geo.  1.  It  is  with  reluctance  that  the  court  grants  a  new  trial 
on  the  ground  that  a  second  verdict  is  against  the  weight  of  evidence, 
and  so  far  as  it  appears  to  the  court,  upon  the  same  proof  as  the  first. 
But  where,  in  an  action  for  a  malicious  arrest,  the  declaration  states  that 
the  defendant  "  failed  to  enter,"  the  writ  on  which  the  arrest  was  made, 
"  and  to  prosecute  the  same,"  and  the  proof  on  both  sides  is  concurrent 
and  explicit,  that,  pending  the  writ  complained  of,  the  parties  settled 
their  respective  claims,  embracing  those  alleged  as  the  foundation  of  the 
suit,  and  the  defendant  promised  to  pay  his  own  costs,  stop  the  suit,  and 
see  that  the  plaintiff  was  discharged  from  custody  in  the  jail-book  ;  the 
coui't  will  grant  a  motion  by  the  defendant  for  a  new  trial,  the  costs  to 
abide  the  event  of  the  suit.     Bounds  v.  Humes,  7  R.  I.  535. 


480  THE    LAW    OF   NEW    TRIALS.  •       [CH,  XIV. 

tended  to  prove,  were  insufficient  in  law  to  authorize  the 
verdict  in  his  favor ;  no  exception  lies  to  the  overruling 
of  that  motion,  it  being  addressed  to  the  discretion  of  the 
court,  and  in  the  nature  of  a  demurrer  to  evidence,  which 
must  be  taken  before  verdict.  The  statutory  provision 
for  exceptions  to  any  ruling  in  matter  of  law^  does  not 
apply  to  such  a  case.^ 

§  58.  It  has  been  held  that  a  new  trial  will  not  be 
granted  for  a  jjervcrse  verdict,  or  a  verdict  against  the 
opinion  of  the  judge.  (See  chap.  8.)  In  this  case,  a  dis- 
tinction w^as  made  Ijctween  a  perverse  verdict,  and  one 
merely  against  evidence.  The  jury  having  found  a  small 
amount  of  damages  for  the  plaintiff,  it  was  argued,  that 
they  must  have  been  of  opinion  that  the  plaintift'  had 
been  himself  negligent,  and  yet  have  given  a  verdict  in 
his  favor  by  compromise.'^ 

§  59.  Witli  respect  to  the  class  of  cases  in  wliich  a  new 
trial  will  be  granted  on  this  ground ;  it  has  been  granted 
upon  an  inquisition  of  forcible  entry  and  detainer.^  So  in 
questions  of  location.^  It  is  held,  that,  in  cases  for  the  di- 
version of  ivcder,  the  verdict  of  a  jury  will  rarely  be  dis- 
turbed.^    It  has  been  refused  in  a  patent  case.*' 

§  60.  A  new  trial  will  be  granted  in  criminal  cases, 
■where  circumstances  of  guilt  are  slight.^  Or  where  the 
testimony  preponderates  against  the  verdict.^  So  where 
the  court  above,  on  a  review  of  the  testimony  detailed  on 
a  trial  for  homicide,  resulting  in  conviction  of  murder  in 
the  second  degree,  were  satisfied,  that  the  facts  w^ere  in- 

»  Lowell,  &c.  V.  Bean,  1  Allen,  ^  Blanchard,   &c.   v.  Jacobs,   3 

274.  Blalch.  Gi). 

2  Hawkins  v.  Alder,  18  Com.  B.  '  The  State  v.  Powers,  Geo. 
g33_  Decis.,  Part  I.  150. 

3  Adam  1).  Robeson,  1  Mur.  392.  «  Copeland  v.  State,  7  Humph. 
■1  Bank  t'.Bolio.  11  Rich.  T)!)?.  479;  Cochran  v.  State,  ib.  544; 
5  Brown  v.  Smith,  10  Cal.  508.        Leake  v.  The  State,  10  ib.  144. 


en,  XIV.]  VERDICT    AGAINST    EVIDENCE.  481 

volvod  in  too  much  doiiLt  and  uncertainty  to  warrant  the 
conviction.^  Or  wliere  the  jury,  in  a  trial  for  murder,  had 
not,  in  the  consideration  of  the  evidence,  given  the 
prisoner  the  benefit  of  every  doubt.^  So,  where  a  reason- 
able doubt  existed,  as  to  the  defendant's  intention  in  in- 
terfering in  a  struggle  between  two  other  persons,  result- 
ing in  the  death  of  one  of  them.''  So,  where  a  citizen  was 
convicted  of  changing  the  brand  on  a  hog,  he  was  held 
entitled  to  a  new  trial,  the  proof  for  him  being  stronger 
and  more  decisive  than  that  against  him,  leaving  room  to 
doubt  of  his  guilt."  So  a  new  trial  was  granted,  of  an 
indictment  for  stealing  a  horse,  it  appearing  that  there 
was  a  possibility  that  the  Avitnesses  might  have  mistaken 
the  person  of  the  accused,  and  an  alibi  being  clearly 
proved  by  other  witnesses,  who  gave  their  residence  and 
occupation.* 

§  61.  The  distinction  is  taken,  that  in  ijenal  actions  a 
verdict  for  the  defendant  will  not  be  set  aside  as  being 
against  evidence,  though  it  may  be  for  misdirection.^  As 
in  case-  of  usury.''  So,  on  a  defence  of  usury,  where  there 
is  a  verdict  for  the  plaintiiF,  and  there  is  any  room  for 
doubt  whether  the  usurious  contract  extended  to  the 
original  loan ;  a  new  trial  will  not  be  granted,  although 
the  court  sitting  as  a  jury  would  have  found  for  the  de- 
fendant. The  court  speak  of  the  defence  as  "severely 
penal."*  So,  where  the  question,  whether  the  purchase  of 
bills  of  exchange  was  a  fair  business  transaction,  or  de- 
signed as  a  cloak  for  usury,  had  been  left  to  the  jury 
under  proper  instructions  ;  the  court  refused  a  new  trial.^ 

'  Garland  v.  State,  3  Swan,  18.        The  King  v.  Mann,  4  M.  &  S.  337  ; 

2  The    State    v.    Hammoud,     5    Hall  v.  Green,  24  Eng.  Law  and 
Strobh.  91.     See  The  State  v.  Jef-     Eq.  ATiZ. 

froys,  3  Mur.  480.  MO  E.  2G8. 

3  Guilford  v.  State,  24  Geo.  315.  s  Mansfield  ».  Wheeler,  23  Wend. 
'  Reynolds  v.  State,  24  Geo.  427.     79. 

5  Lincoln  v.  People,  20  111.  304.  9  Earll  v.  Mitchell,  33  111.  530. 

6  Brook  V.  Middleton,  10  E.  368; 

31 


482  THE    LAAV    OF    NEW    TRIALS.  [CII.  XIV. 

So  in  case  of  soiling  whiskey  without  license.'     Or  upon 
a  statute  to  prevent  injury  by  dogs.' 

§  62.  It  is  said  that,  in  penal  actions,  and  in  actions  for 
a  libel  or  defamation,  and  other  actions  vindictive  in  their 
nature,  unless  some  rule  of  law  be  violated,  in  the  admis- 
sion or  rejection  of  evidence,  or  in  the  exposition  of  the 
law  to  the  jury,  the  eoui't  will  not  give  a  second  chance 
of  success.^  Thus,  in  an  action  for  malicious  prosecution 
on  a  charge  of  forgery,  four  witnesses  testified  for  the 
plaintiff,  and  the  judge  directed  the  jury  in  his  favor, 
but  they  found  for  the  defendant.  In  consideration  that 
the  action  was  of  a  criminal  nature,  a  motion  for  a  new 
trial  was  overruled.^ 

§  63.  But  where  there  is  strong  proof  of  fraud.,  a  ver- 
dict against  it  will  be  set  aside.^  As  in  case  of  a  verdict 
for  the  defendant,  in  an  action  for  fraud. ^  So  in  case  of  an 
action  of  deceit  for  recommendation  of  the  defendant's 
son;  where  the  defendant  stated  that  his  son  had  £300, 
but  it  appeared  that  he  had  just  before  loaned  him  the 
sum.^  So  in  a  case  of  quo  warranto^  which  for  this  pur- 
pose is  held  a  civil  proceeding.^ 

§  64.  A  verdict  will  be  set  aside,  if  the  jury  acted  upon 
the  hardship  of  the  case,  disregarding  the  rules  of  law, 
and  the  verdict  is  clearly  against  evidence.^  (See  Chap. 
III.)  So,  on  the  other  hand,  though  no  single  ground  is 
very  strong,  if  the  verdict  is  substantially  unjust.'"  So 
where,  in  an  action  of  trespass  for  an  injury  to  a  horse 

'  Baker  v.  Richardson,   1    Cow.        '  Corbctt  v.  Brown,  8  Bing.  33. 
77.  8  King  V.  Francis,  2  T.  K.  484. 

^  Comfort t'.  Thompson,  10  Jolin.  (In  the  case  of  Rex  v.  Bennett,  1 

101.  Str.  101,  the  point  was  left  doubt- 

3  Per  Sutherland,  J.,  Paddock  «.  ful.) 
Salisbury,  2  Cow.  811.  ^  Dickinson  v.  Cruise,  1   Head, 

«  Norris  v.  Tyler,  1  Cowp.  37.  258. 

6  Homerton  y.  Holt,  23  Tex.  51.         '°  McDowell  v.  Preston,  26  Geo. 

B  Loflft,  212.  528. 


Cir.  XIV.]  VERDICT    AGAINST    EVIDENCE.  483 

which  was  found  in  the  defendant's  enclosure,  judgment 
was  given  for  the  plaintiff,  but  it  appeared  before  the 
court  above  that  the  injury  was  rather  the  result  of  acci- 
dent than  of  design;  a  new  trial  was  granted.^ 

§  65.  It  is  held,  that  in  trifling  cases  a  verdict  for  the 
defendant  will  not  be  set  aside  as  against  evidence.^  Thus 
"the  court  will  not  grant  a  new  trial  for  so  trifling  a  sum 
as  £5,  or  even  under  £20.^  Nor  in  an  action  for  trespass, 
which  is  frivolous  and  vexatious,  although  the  act  is 
clearly  proved,  and  the  verdict  for  the  defendant.^  Nor 
in  slander,  where  the  plaintiff  had  accidentally  caused 
the  death  of  his  brother,  and  the  defendant  in  anger  said 
he  had  murdered  him;  the  jury  finding  no  malice.^  Nor 
in  an  action  upon  the  warranty  of  a  horse,  worth  only 
£20  2(/.,  MansSeld  said,  "Uncertain  justice  by  a  verdict 
is  much  better  than  certain  injustice,  which  latter,  I 
think,  would  follow  by  granting  a  new  trial."^  Nor  in 
an  action  for  breaking  into  a  shop,  where  no  damage  was 
proved,  and  the  verdict  was  for  the  defendant.  Lord 
Mansfield  said,  the  plaintiffs  ought  to  waive  their  motion, 
for  upon  another  trial  they  might  probably  recover  six- 
pence, which  would  be  all  they  could  deserve.^ 

§  66.  It  is  held  sufiicient  ground  for  refusing  a  new 
trial,  that  it  would  he  of  no  ultimate  benefit  to  the  party 
applying  for  it.  (See  Chap.  III.)  Thus,  in  an  action  of 
replevin,  the  verdict  was  for  the  plaintiff",  with  four 
guineas  damages.  In  refusing  a  new  trial.  Lord  Chief 
Justice  Best  remarked,  that  it  could  he  granted  only  on 
payment  of  costs,  and  the  defendant  might  eventually  be 
put  to  the  expense  of  fifty  pounds.*    So  where,  in  trespass 

1  Self  V.  Deloach,  1  McMullan,  *  Macrow  v.  Hull,  1  Burr.  11. 
13.  5  2  pi-ice,  283. 

2  Lofft,  539.  6  Lotft,  14G. 

3  Per  :Mansfield,  C.  J.,  Roberts  v.  ?  ib.  391. 

Karr,  1  Tann.  493  ;  Tarlin<?ton  v.        «  Brown  v.  Ray,  9  Moo.  583. 
Speucer,  4  Hurl.  &  Nor.  859. 


484  THE    LAW    OF    NEW    TRIALS.  [CII.  XIV. 

qu.  clans.,  the  plaiiitill:"  recovered  Init  iivo  dollars,  and  was 
therefore  bound  to  pay  full  costs;  a  new  trial  was  refused 
to  the  defendant,  although  evidence  offered  by  him  was 
wrongly  rejected  as  a  justification,  but  admitted  in  miti- 
gation.^ So  where,  in  trespass  against  a  sheriff,  who  justi- 
fied under  an  execution,  he  failed  to  produce  the  judg- 
ment, but  the  plaintiff's  title  clearly  appeared  to  be 
fraudulent,  and  the  jury  found  for  the  defendant.-  And 
upon  the  same  principle  it  is  held  ground  for  refusing  a 
new  trial,  that  the  cause  has  been  thoroughly  tried,  and 
is  susceptible  of  no  new  light.^  So  where,  in  an  action 
for  flooding  the  plaintift"s  land,  the  verdict  was  for  sixty- 
six  dollars ;  a  motion  for  a  new  trial  was  denied,  on  the 
ground  that  the  sum  was  too  small  to  justify  another  trial, 
unless,  as  was  remarked  by  the  court,  "courts  of  justice 
are  kept  open  to  gratify  the  evil  passions  of  mankind."'* 

§  G7.  Questions  have  arisen  as  to  decisions  against  evi- 
dence, where  a  jury  had  been  waived,  and  the  case  sub- 
mitted to  the  court  to  decide  the  facts  as  well  as  the  law. 
Upon  this  subject  it  is  held,  that,  where  there  was  any 
evidence  on  which  the  finding  of  the  court  could  be  pre- 
dicated, a  new  trial  will  not  be  granted  f  unless  the 
record  shows  that  some  requisite  decision  upon  a  point  of 
law  was  wrong.^ 

§  68.  AVhere  a  cause  is  by  agreement  submitted  to  tlie 
court  to  decide  on  the  facts  as  well  as  the  law;  on  motion 
for  a  new  trial,  the  usual  presumption  will  be  made  in 
regard  to  the  facts.  If  there  is  any  evidence  to  su})]wrt 
the  judgment,  or  a  conflict  of  evidence,  the  court  will 
not  grant  a  new  trial;  but  if  there  is  no  evidence  to  sup- 

'  Hunt  V.  Barrel,  5  John.  137.  ^  McEvoy   v.  Lane,  9  Mis.  48; 

2  High  V.  Wilson,  3  John.  4G.  Young  v.  Kelly,  9  Mis.  50;  Sullivan 

»  Camden  v.  Cowley,  1  W.  Bl.  v.  Bichardson,  25  Geo.  154. 

418;Collinson».Larkins,3Taun.  1.  ^  Von  Fhul  v.  St.  Louis,  9  Mis. 

*  Buddington    v.    Knowlcs,    30  49. 
Conn.  2C. 


CH.  XIV.]  VERDICT    AGAINST    EVIDENCE.  485 

port  it  they  will.^  And  submission  of  the  facts  to  the 
decision  of  the  judge  does  not  affect  the  reason  of  the 
rule,  that  the  Supreme  Court  will  not  disturb  a  verdict, 
on  the  o-round  that  it  is  contrary  to  the  evidence,  where 
the  testimony  is  contradictory;  and  the  judgment  of  the 
court,  in  such  a  case,  will  be  regarded  in  the  same  light 
as  the  verdict  of  a  jury.^  So,  where  an  issue  of  fact  is 
tried  before  a  judge,  without  a  jury,  by  consent  of  parties, 
under  the  'New  York  judiciary  act  of  May  12,  1847,  the 
finding  of  the  judge  on  such  issue  will  be  treated  as  if  it 
were  the  verdict  of  a  jury  thereon;  and  it  will  not  be  set 
aside  as  against  the  weight  of  evidence,  unless  the  pre- 
ponderance of  the  evidence  be  so  great,  that  the  verdict 
of  a  jury  to  the  same  effect,  on  the  same  testimony,  would 
be  set  aside.^  So  in  Missouri,  under  Rev.  Code,  p.  1189, 
providing  that  the  trial  of  misdemeanors  may  be  submit- 
ted to  the  court  with  their  assent,  by  agreement  of  the 
prosecuting  attorney  and  the  defendant,  a  new  trial  will 
not  be  granted  after  a  finding  by  the  court,  simply  because 
the  evidence  is  contradictory.^(a) 


•  Wiley  V.  Kelsey,  13  Geo.  223.         ^  Osborn  v.  Marquand,  1  Sandf. 
2  Paul  V.  Perez,  7  Tex.  338.  457. 

4  State  V.  Moody,  24  Mis.  560. 


(rt)  Where  there  is  not  a  clear  and  palpable  weight  of  evidence  against 
the  finding  of  the  facts  by  the  court  below,  the  Supreme  Court  will  not 
disturb  the  verdict.  Hallam  v.  Haywood,  21  Iowa,  398.  See  Jackson 
V.  Rutherford,  23  Ark.  24;  Gulledge  v.  Howard,  ib.  61.  Where  evidence 
is  contradictory,  the  finding  must  stand,  if  there  is  some  evidence  to 
support  it.  Strong  v.  Blake,  46  Barb.  227.  In  an  issue  involving  the 
capacity  of  a  testator,  in  which  many  witnesses  testified  to  his  great 
eccentricity  and  belief  in  witchcraft,  and  gave  their  opinion  against  his 
capacity  to  make  a  will,  and  other  witnesses  testified  that  he  understood 
the  value  of  property,  and  had  capacity ;  the  decision  of  the  court  will 
not  be  disturbed,  when  the  issue,  by  agreement,  has  been  tried  by  the 
court  "  in  lieu  of  a  jury."  Kelly  v.  Miller,  39  Miss.  17.  Upon  a  motion 
to  the  lord  chancellor  to  grant  a  new  trial  of  a  case  heard  by  a  vice- 
chancellor  without  a  jury,  on  the  ground  that  his  finding  was  against 
the  weight  of  evidence;  held,  that  the  lord  chancellor  would  not  consider 


486  THE    LAW    OF   NEW    TRIALS.  [CII.  XIV. 

§  GO.  In  a  late  case  it  h  said:  "A  verdict  taken  by  con- 
sent will  be  sustained,  if  there  was  any  competent  evi- 
dence on  which  it  could  have  been  found ;  while  a  verdict 
ordered  by  the  court,  will  be  set  aside,  if  there  was  any 
evidence  upon  wliich  the  jury  might  have  found  the  other 
way."^ 

§  70.  In  Kew  York,  the  award  of  a  referee  will  not  be 
set  aside  as  against  evidence,  unless  clearly  so.^ 

§  71.  Where  a  verdict  is  not  only  against  the  weight  of 
evidence,  but  at  the  same  time  against  law  ;  this  will  fur- 
nish additional  ground  of  new  trial.  Thus  where  the 
action  was  for  injuries  to  the  plaintiff,  by  the  overturning 
of  a  stage  coach,  in  which  she  was  a  passenger,  resulting 
from  the  negligence  of  the  defendant's  agent ;  and  from 
the  undisputed  facts  the  court  could  see  that  there  was 
culpable  negligence;  and  the  defence  rested,  not  only  upon 
the  absence  of  such  negligence,  but  a  settlement  and  dis- 
charge, by  the  plaintiff's  attorney,  whose  authority  was 
denied ;  and,  both  issues  being  submitted  to  the  jury,  they 
o-ave  a  verdict  for  the  defendant:  it  was  held,  that  the 
iury  must  have  proceeded  upon  false  notions  of  law,  and, 
as  in  the  opinion  of  the  court  the  verdict  was  against  the 
evidence,  on  both  grounds  a  new  trial  was  granted.^ 

§  72.  So,  where  the  question  is  one  of  fraud  in  the  sale 
of  goods,  evinced  by  the  want  of  that  change  of  possession 
which  the  law  requires,  to  render  the  sale  valid  as  against 
creditors,  or  by  a  cliange  of  possession  merely  colorable; 
there  is  such  a  blending  of  the  facts  with  the  law  on  the 

'  Per  Sari^ont,  J.,  Weeks  «.  Ro-  ^  Dcrwort  v.  Loomer,  21  Conn, 
bie,  2  N.  n.  ;32:{.  245. 

2  Sinclair  v.  Tallmadgc,  35  Barb, 
602. 


what  would  be  the  proper  view  of  the  case  had  it  been  originally  pre- 
sented to  him,  but  only  whether  there  was  snfllcient  evidence  to  warrant 
the  verdict.     Penn  v.  Bibby,  Law  Rep.,  2  Ch.  127. 


CII.  XIV.]  VERDICT   AGAINST   EVIDENCE.  487 

subject,  the  whole  being  submitted  to  the  jury  together, 
as  frequently  to  render  it  necessary  for  the  court,  in  order 
to  avoid  injustice,  to  be  more  liberal  in  the  granting  of 
new  trials.^ 

§  73.  And  a  new  trial  will  be  granted,  though  instruc- 
tions are  erroneous,  if  under  those  instructions  the  verdict 
is  against  evidence.^ 

§  74.  But,  in  considering  a  ruling  of  the  court  below, 
setting  aside  a  verdict  as  against  evidence,  the  court  above 
will  look  only  at  the  evidence  before  the  jury,  and  not  at 
competent  evidence  ottered  and  erroneously  excluded.^ 

§  75.  The  practice  in  England  is  said  to  have  been,  to 
grant  a  new  trial  as  against  evidence,  if  the  judge  de- 
clared himself  dissatisfied ;  otherwise,  if  he  declared  him- 
self satisfied. ^(a)  Upon  this  subject  it  is  remarked :  "  The 
practice  of  allowing  new  trials  is  of  comparatively  recent 

«  Potter  V.  Payne,  21  Conn.  361.  ■»  Bull,  N.   P.   827  ;  Wheeler  v. 

2  Rogers  v.  Murray,  3  Bosw.  Pitt,  6  Bac.  Abr.  GGS  ;  Rands  v. 
357.  Tripp,  3  INIod.  199  ;  Letgoe  «.  Pitt, 

3  Tegarden  v.  Carpenter,  36  Miss.  Barnes,  439. 
404. 

(a)  A  verdict  will  not  be  disturbed  that  is  satisfactory  to  the  judge  of 
the  court  below,  where  no  error  of  law  intervenes,  if  there  is  any  evi- 
dence to  sustain  it.  Van  Huss  v.  Rainbolt,  2  Cold.  139.  The  genuine- 
ness of  a  note  sued  on  is  a  question  for  the  jury,  and  where  the  presiding 
judge  appears  to  have  been  satisfied,  if  not  with  the  correctness,  with 
the  legality  of  the  finding,  the  court  will  not  interfere  on  account  of  any 
suspicions  that  the  note  has  been  altered.  Dupree  v.  Price,  37  Geo.  235. 
A  verdict  will  not  be  disturbed,  where  no  misdirection  is  complained  of, 
and  there  is  an  irreconcilable  conflict  of  testimony,  and  the  judge  is 
satisfied  with  the  verdict,  although  the  court  may  be  unable  to  trace  the 
process  by  which  the  jury  arrived  at  the  amount  of  damages.  Foute  v. 
Massey,  37  Geo.  258.  When  a  verdict  is  wholly  without  evidence,  still 
more  when  it  is  directly  against  the  entire  evidence,  and  even  when  the 
preponderance  of  evidence  is  manifestly  in  opposition  to  it,  and,  espe- 
cially, when  in  any  of  these  cases  the  impression  made  upon  the  mind  of 
the  presiding  judge  concurs  with  the  view  of  the  court  above,  a  new 
trial  will  be  granted.     Plate  v.  Carolina,  15  Rich.  L.  213. 


488  THE   LAW    OF   NEW    TRIALS.  [CIL  XIV.' 

orio;in  in  tlie  law,  designed  to  avoid,  some  possible  dangers 
to  which  the  trial  by  jury  is  obviously  exposed ;  but  for  a 
long  time  it  was  considered  doubtful  Avhether  a  new  trial 
could  be  granted  where  there  was  any  evidence  on  both 
sides,  and  it  was  considered  that  a  new  trial  could  only 
regularly  be  granted  where  the  verdict  was  without  evi- 
dence, or  against  the  whole  evidetice.  In  the  English 
practice,  it  is  believed,  that  such  a  motion  is  never  enter- 
tained by  the  court,  unless  where  leave  has  been  expressly 
given  to  make  such  motion,  by  the  judge  at  nisi  iirius^ 
and  in  practice  such  leave  is  usually  given  only  when  he 
himself  entertains  doubts  of  the  sufficiency  of  the  evidence 
and,  on  the  whole,  is  not  satisfied  with  the  verdict.  In 
such  cases  the  facts  are  usually  stated  from  the  judge's 
minutes  at  the  hearing."^  Thus  a  new  trial  was  granted, 
where  there  was  evidence  on  both  sides,  but  the  judge 
reported  that  the  evidence  for  the  prevailing  party  was 
very  slight,  and  that  on  the  other  side  very  strong.^  So 
where  two  judges  sat  upon  the  trial,  and  one  of  them  was 
dissatisfied,  although  the  other  was  not;  the  court  re- 
marking, "  As  a  man,  I  am  satisfied  with  the  verdict,  but 
as  a  judge,  I  ought  not  to  be  satisfied,  unless  the  court  is 
so."^  AVhile,  on  the  other  hand,  if  the  judge  is  not  dis- 
satisfied, there  must  be  a  very  strong  case  to  justify  a  new 
trial.*  In  an  action  on  a  promissory  note  by  indorsee 
against  maker,  the  defence  was,  fraud,  that  the  note  was 
indorsed  without  consideration,  and  that  the  plaintiff 
sued  as  trustee.  The  defendant  having  closed  his  case, 
the  judge  told  the  jury  that  there  was  no  evidence  to 
sustain  the  plea.  The  jury,  however,  returned  a  verdict 
for  the  defendant.  The  court  granted  a  new  trial,  with- 
out examining  whether  the  direction  of  the  judge  was 
rio"ht  or  wrong.'     So  the  plaintiff  and  defendant  were 

'  Per  Shaw,  C.  J.,  Miller  v.  Ba-        ''  Cain?).  Henderson,  2 Binn.  108. 
ker,  20  Pick.  28!)-90.  '^  Wood  ».  Cox,  33  Eng.  Law  and 

2  Berks  v.  :\Iason,  Sayer,  264.  E(i.  313. 

3  Per  Washington,  J.,  Harrison 
«.  Rowan,  4  Wash.  C.  32. 


ClI.  XIV.]  VERDICT    AGAINST    EVIDENCE.  489 

witnesses,  and  gave  contradictory  testimony.  There  was 
other  evidence,  and  the  jury  found  for  the  plaintiff.  The 
judge  declaring  that  in  his  opinion  the  verdict  was  grossly 
wrong,  the  court  granted  a  rule  for  a  new  trial  without 
costs ;  and  after  argument  made  it  absolute,  costs  to  be 
costs  in  the  cause. ^ 

§  70.  It  has  been  sometimes  held,  however,  that  a  new 
trial  will  not  be  granted,  though  the  judge  is  dissatisfied, 
or  would  have  come  to  a  different  conclusion;  more  espe- 
cially if  the  case  turned  upon  the  credit  of  witnesses.-(a) 
Or  where  the  case  turned  "  on  a  mass  of  testimony,  writ- 
ten and  parol,"  more  especially  if  unimpeached.^  ISTor  if 
the  verdict  is  for  the  defendant,  and  there  was  some  evi- 
dence for  him.*  Nor  though  the  judge  reports  that  the 
evidence  for  the  plaintilf  was  very  weak,  and  that  he 
summed  up  strongly  for  the  defendant,  the  verdict  being 
for  the  plaintilf.^  Thus  a  new  trial  was  refused  in  a  case 
of  collision,  where  the  verdict  was  for  the  plaintiff, 
although  ;Nransfield,  C.  J.,  said:  "Had  I  been  on  the  jury, 
I  should  have  made  such  allowances  for  the  darkness  of 
the  night,  that  I  should  have  found  for  the  defendant."" 
And  the  general  rule  is  laid  down,  that,  where  there  is 
some  evidence  to  sustain  a  verdict,  the  judge  should 
not  set  it  aside,  because,  in  his  opinion,  the  evidence  is 
insufiicient.^ 


'  Skiffina;ton  v.  Clark,  20   Eng.  ^  Griffith  ».  Willing.  8  Binn.  SIT; 

Law  and  Eq.  356.  Hull  v.  Hodge,  2  Tex.  328. 

"  Felil   V.  Good,    2    Binn.    495;  *  Ashley  ».  Ashley,  2  Str.  1U2. 

Williams  v.  Vaiiderbilt.  21)   Barb.  ^  Smith  v.  Iluii-gins,  2  Str.  1142. 

4!)1  ;    Muckey   v.   N.  Y.,   &c.,  27  e  Colllnson  r.  Larkiiis.  8  Taun.  1. 

Barb.  528.  ^  Dexter  v.  Cole,  6  Wis.  819. 


(a)  It  is  said,  in  a  late  case,  "  The  jury  had  an  opportunity  to  observe 
the  appearance  and  demeanor  of  the  parties ;  to  ascertain  their  compa- 
rative intelligence,  accuracy  of  recollections,  and  general  trustworthiness, 
as  well  as  the  consistency  or  inconsistency  of  their  admitted  conduct 
with  their  respective  claims."  Per  Sanford,  J.,  Waters  v.  Bristol,  liG 
Conn.  405. 


490  THE    LAW    OF    NEW    TRIALS.  [CU.  XIV. 

§  77.  And  a  new  trial  was  refused,  though  the  judge 
Gortifiod  that  the  wciglit  of  the  evidence  was  witli  the 
pLaintilf,  but  the  verdict  was  for  the  defendant;  there 
being  evidence  for  the  defendant.'  So  although  "  the  evi- 
dence presented  in  the  case  seems  to  be  in  favor  of  the 
defendant ;"  but  it  was  contradictory,  and  the  verdict  was 
for  the  plaintift?  So  where,  in  an  action  for  negligently 
driving  against  and  killing  a  horse  of  the  plaintift'  proved 
to  be  worth  £30,  the  jury,  there  being  strong  evidence  to 
negative  negligence  on  the  part  of  the  defendant,  and 
some  evidence  the  other  way,  contrary  to  the  opinion  of 
the  judge,  found  for  the  plaintiff,  damages  £15  ;  the  court 
refused  to  grant  a  new  trial,  on  the  ground  of  the  verdict 
being  perverse.^ 

§  78.  In  a  leading  case  it  is  said:  "If  there  hath  been 
a  contrariety  of  evidence  on  both  sides,  the  courts  have 
never  granted  new  trials,  notwithstanding  the  judge, 
before  whom  the  cause  was  tried,  hath  been  of  opinion 
that  the  strength  and  weight  of  evidence  was  against  the 
verdict."*  And  the  English  rule  is  said  not  to  prevail  in 
the  United  States.^  Where  the  court  above  is  satisfied 
with  the  verdict,  it  will  reverse  the  allowance  of  a  new 
trial  by  the  court  below,  although  such  allowance  implies 
dissatisfaction. ^(a) 

'  AshU'v  V.  Ashley,  2  Str.  1142.  Poake,  7  Tann.  15.3  ;    Hartwriglit 

Ace.  1  Wils.  22.  V.  Badham,  11  Price, 38S;  Carstairs 

2  Douglas  v.  Tousey,  2  Wend.  v.  Stdn,  4  M.  &  S.  192  ;  Wood- 
352.  ^vard  v.  Payne,  15  .Tolin.  493  ;  Ack- 

3  Hawkins  «.  Alder,  37  Eng.  Law  ley  «.  Kellogg,  8  Cow.  223. 
and  Eq.  258.  ^  Graham,  407. 

»  Per  AVilinot,  C.  J.,  Swain  v.  ^  Daley  v.  Norwich,  &c.,  20 
Hall,  3  Wils.  45.     Ace.  Lewis  v.     Conn.  591. 

(a)  After  a  verdict  of  not  guilty  upon  an  indictment  for  obstructing 
a  highway,  a  new  trial  will  not  be  granted  on  the  ground  that  the  ver- 
dict was  against  evidence ;  although  the  judge  who  tried  the  case  re- 
ports Unit  lie  is  dissatisfied  with  the  verdict.  Regina  v.  Johnson,  2  E1.& 
E.  613. 


en.  XV.] 


NEWLY-DISCOVERED    EVIDENCE. 


491 


CHAPTER  XV. 


NEWLY-DISCOVERED  EVIDENCE. 


1.  General  rule. 

4.  Hcniiirks  of  courts. 

G.  Dili.nencc  must  be  proved. 

7.  Forj:;ett'ulness. 

9.  Documentary  evidence. 

11.  Ignorance  of  counsel. 

13.  Cumulative  evidence. 

19.  Evidence  to  impeach,  contra- 
dict, or  otherwise  affect  a  "witness. 


28.  Questions  of  amount. 
20.   Questions  of  form. 

30.  To  prove  a  crime. 

31.  Court  above. 

35.  Form  of  application,  affida- 
vits, statement  of  evidence,  hear- 
say, &c. 

40.  Materiality  and  credibility. 


§  1.  A  FREQUENT  ground  of  application  for  new  trial,  is 
the  discovery  of  new  evidence  subsequent  to  the  former  trial. 

§  2.  The  general  rule  upon  this  subject  is,  that  after- 
discovered  evidence,  in  order  to  afford  a  proper  ground 
for  a  new  trial,  must  be  such  as  reasonable  diligence  on 
the  part  of  the  party  offering  it  could  not  have  secured 
at  the  former  trial;  must  be  material  in  its  object,  going 
to  the  merits  of  the  case,  and  not  merely  cumulative  and 
corroborative,  or  collateral ;  and  must  be  such  as  ought  to 
be  decisive,  and  productive,  on  another  trial,  of  an  oppo- 
site result  on  the  merits.^  And  also,  as  is  sometimes 
said,  not  impeached  by,  or  going  to  impeach,  a  former 
witness.^(rt) 


1  Thompson's  Case,  8  Gratt.  037 
Bourland  c.  Skinner,  G  Ens'!:.  G71 
Wise  V.  State,  24  Geo.  31  ;  Reeves 
V.  Royal,  2  Greene  (Iowa),  451 
Com.  V.  ^Murray,  2  Ashmead,  41 
Com.  r.  Williams,  ib.  Gi) ;  Smith  )' 
]\Iatthews,  6  Mis.  GOO  ;  Robins  v 
Fowler,  2   Pike,   133  ;    Crozier  v. 


Cooper,  14  111.  130;  Clark  v.  Carter, 
12  Geo.  500;  Simpson  v.  Wilson,  G 
Ind.  474;  Giles  v.  The  State,  G  Geo. 
276. 

2  Perkins  v.  Fowler,  2  Pike,  133; 
Crozier  v.  Cooper.  14  111.  loO.  See 
Foot  y.  Silsby,  1  Blatch.  445. 


(a)  111  South  Carolina,  it  was  formerly  held  that  a  new  trial  will  not 
be  granted  on  account  of  new  evidence  discovered  since  the  trial.  Bu- 
chanan V.  Carolin,  1  Brev.  185 ;  Faber  v.  Baldwick,  3  Brev.  350.     lu 


492  THE    LAW    OF   NEW    TRIALS.  [CH.  XV. 

§  2.(1.  In  a  late  case  it  is  laid  down,  that  a  new  trial  will 
not  be  granted  on  tlie  ground  of  newly-discovered  evi- 
dence, unless  it  appear  probable  that  injustice  has  been 
done,  and  that  the  new  evidence  is  of  such  controlling 
character  that  it  will  probably  correct  the  injustice  ;  nor 
unless  it  goes  directly  to  the  merits  of  the  controversy, 
and  not  merely  to  contradict  or  impeach  a  witness;  nor 
if  it  applies  to  a  point  directly  drawn  in  question  by  the 
suit,  but  which  -was  so  far  abandoned  at  the  trial,  and  in 
the  preparation  for  it,  by  the  losing  party,  that  all  inquiry 
for  evidence  upon  that  point  was  waived  by  liim.^ 

§  3,  In  still  another  case  the  grounds  are  enumerated 
as  follow^s.  Where  a  witness  has  discovered  that  he  made 
a  mistake  in  his  testimony.  Where  the  new  evidence 
relates  to  declarations  or  confessions  of  the  prevailing 
party  inconsistent  with  the  evidence  offered  by  him. 
Where  the  new  evidence  was  kept  from  the  knowledge 
of  the  petitioner  by  the  prevailing  party,  for  the  purpose 
of  prejudicing  his  case. 


2 


>  Crafts  v.  Union,  &c.,  3G  N.  H.        2  Warren  v.  Hope,  6  Greenl.  479. 
44. 

general,  newly-discovered  evidence  must  have  been  discovered  since  the 
trial.  Oakley  v.  Sears,  7  Rob.  (N.  Y.)  Ill ;  O'Barr  v.  Alexander,  37 
Geo.  195.  By  analogy,  however,  the  new  evidence  may  sometimes  be 
said  to  have  been  matter  nexoly  created.  Thus  in  an  action  upon  a  note, 
assigned  after  maturity,  the  defendant  alleged  a  breach  of  warranty  in 
the  deed  of  land  for  which  the  note  was  given,  and  on  the  trial  showed 
a  sheriff's  sale  of  a  portion  of  the  land  under  a  judgment  on  file  in 
the  proper  county,  at  the  time  of  the  conveyance;  but  the  sheriff's 
deed,  which  was  offered  in  evidence,  did  not  show  that  the  execution, 
upon  which  the  sale  was  made,  was  issued  upon  the  same  judgment  as 
that  set  forth  in  the  record.  After  judgment  for  the  plaintiff,  the  de- 
fendant moved  for  a  now  trial,  on  the  ground  that  within  three  days 
after  the  trial  the  sheriff  executed  another  deed,  in  which  the  errors  in 
the  first  were  corrected.  Held,  a  new  trial  should  be  granted.  Deere  v. 
McConnell's,  1.5  Iowa,  269.  Where  the  right  to  a  review  exists,  and  no 
misconduct  is  charged  on  the  adverse  party,  a  new  trial  will  not  be 
granted  on  the  ground  of  newly-discovered  evidence.  Ordway  v.  Haynes, 
47  N.  H.  9. 


en.  XV.]  NEWLY-DISCOVERED   EVIDENCE.  493 

§  4.  The  remarks  of  judges  are  often  very  strong  against 
the  policy  of  interfering  with  verdicts  upon  this  ground. 
Thus  it  is  said:  "Motions  of  this  kind  are  to  be  received 
with  great  caution,  because  tliere  are  few  cases  tried  in 
which  something  new  may  not  be  hunted  up;  and  because 
it  tends  very  much  to  the  introduction  of  perjury,  to  admit 
new  evidence  after  the  party  wlio  has  lost  the  verdict  has 
had  an  o}ii)ortunity  of  discovering  the  points  both  of  his 
adversary's  strength  and  his  own  weakness."^  So,  in  an- 
other case:  "It  is  infinitely  better  that  a  single  person 
should  suffer  mischief,  than  that  every  man  should  have 
it  in  his  power,  by  keeping  back  a  part  of  his  evidence, 
and  then  swearing  it  was  mislaid,  to  destroy  verdicts,  and 
introduce  new  trials  at  their  pleasure."^  And,  in  another 
(criminal)  case,  where  there  had  been  want  of  diligence 
in  pre})aration  for  the  trial:  " By  the  assistance  of  con- 
federates he  might  be  enabled  to  procure  unprincipled 
men  to  be  witnesses  to  contradict  the  evidence  on  the  part 
of  the  State,  and  thereby  defeat  the  ends  of  justice. "^(«) 

'  Moore  v.  The  Philadelphia  2  Per  Rush.  Pros.,  Aubcl».Ealer, 
Bauk,  5  S.  &  R.  41.  2  Binn.,  582  n. 

3  State  V.  Harding,  2  Bay,  267. 

(a)  After  ;i  full  trial,  iicwly-discovered  evidence,  to  warrant  setting 
aside  the  verdict,  should  be  of  the  most  satisfactory  character.  People 
V.  Sackett,  14  Mich.  320.  Such  applications  are  entertained  with  great 
reluctance,  and,  in  addition  to  the  questions  of  materiality  of  the  evidence, 
and  whether  there  is  a  probability  of  benefit  by  a  re-hearing,  all  the 
attending  facts  and  circumstances  should  be  looked  into  with  great  care. 
Callahan  v.  Caffarata,  39  Mis.  136.  The  applicant  must  make  a  strong 
case,  both  in  respect  to  diligence  in  preparing  for  the  trial,  and  the  truth 
and  materiality  of  the  new  evidence,  and  by  the  best  evidence  that  can 
be  obtained.  Arnold  v.  Skaggs,  35  Cal.  084.  Courts  should  not  grant 
a  new  trial  ou  the  ground  of  newly-discovered  evidence  upon  technical 
ground,  and  when  the  substantial  rights  of  the  pai'ties  have  been  fairly 
adjudicated.  McLaiu  v.  Lawson,  25  Iowa,  277.  Nor  unless  it  would 
probably  vary  the  result.  McClusky  v.  Gerhauser,  2  Nev.  47.  Or  au- 
thorize a  different  verdict.  Yardeman  v.  li^dwards,  21  Tex.  737.  So  held 
in  a  case  of  murder.  Roach  v.  State,  34  Geo.  78.  The  evidence  must 
be  so  important,  that  it  may  reasonably  be  inferred  that  the  verdict 


494  THE    LAW    OF   NEW    TRIALS.  [cil.  XV. 

§  5.  There  are  occasional  instances,  however,  in  which 
the  languaii;e  of  the  courts  woukl  seem  to  sanction  a 
very  liberal  discretion  in  setting  aside  verdicts  upon  this 
ground.  Thus,  in  an  early  case  in  ISTew  York,  the  court 
remarked:  "As  it  is  suggested  that  further  light  can  be 
thrown  on  the  case,  and  new  evidence  appears  to  have 
been  discovered,  we  think,  without  expressing  any  opinion 
on  the  merits  of  tlie  case,  that  a  new  trial  ought  to  be 
granted,  on  the  payment  of  costs."^  And  although,  to 
entitle  a  party  to  a  new  trial  for  newly-discovered  evi- 
dence, it  is  indispensable  that  he  should  have  been  diligent 
in  his  efforts  fully  to  prepare  his  cause  for  trial ;  yet,  where 
he  did  not  know  the  existence  of  the  evidence,  and  was 
not  put  upon  inquiry  in  regard  to  it,  until  the  witness,  by 
whom  alone  it  could  be  fully  proved,  had  gone  beyond  his 
reach,  the  non-production  of  this  evidence  on  the  trial  does 
not  evince  the  omission  of  reasonable  diligence.^(a) 


>  Doe  V.  Roe,  1  John.  Cas.  402.  2  Waller?).  Graves,  20  Conn.  305. 

See  Clark  v.  Carter,  12  Geo.  500. 


would  have  been  dififerent  had  it  been  offered.  Leschi  v.  Territory,  1 
AVash.  Terr.  23.  Newly-discovered  evidence  relating  to  one  of  several 
if^sues,  where  on  the  other  issues  the  judgment  would  be  maintained,  is 
not  a  sufficient  ground  for  a  new  trial.  Sharpe  v.  Traver,  8  Minn.  273. 
A  new  trial  will  be  granted  on  the  ground  of  newly-discovered  evidence 
upon  the  main  question,  likely  to  change  the  result ;  but,  if  only  upon 
a  subordinate  point  already  gone  into,  it  will  be  considered  merely  as 
cumulative.    Flannagan  v.  Newberg,  1  Idaho  Terr.  82. 

(a)  In  an  action  of  trespass  to  try  title  to  a  labor  grant,  where 
boundaries  were  in  question,  new  evidence  was  held  to  be  afforded  by 
the  discovery  of  a  new  material  call,  if  not  the  most  material  call  in  the 
grant ;  incidents  of  the  trial  having  reminded  a  witness,  that  the  spot 
had  been  pointed  out  to  him  by  an  old  citizen  many  years  before,  and 
the  spot  having  been  since  identified  by  him.  Mitchell  v.  Bass,  26  Tex. 
372.  In  a  late  case  a  new  trial  of  the  validity  of  a  will,  which  was  con- 
tested on  the  ground  of  insanity,  was  granted  for  the  discovery  of  new 
evidence.  Young  v.  Dendy,  Law  Rep.  1  P.  &  D.  344.  In  an  action 
against  an  agent  and  his  principal  upon  a  sealed  instrument  given  by  the 
former,  the  principal  denied  the  authority  of  the  agent,  and  testified  that 


CII.  XV.]  NEWLY-DISCOVERED    EVIDENCE.  495 

§  6.  As  already  intimated,  a  new  trial  will  not  be 
awarded  on  the  ground  of  newly-discovered  testimony, 
when  it  appears  that  the  testimony  was  or  ought  to  have 
l)een  known  to  the  party  before  the  trial,  and  no  sufficient 
excuse  is  shown  for  not  })rocuring  it.  There  must  have 
been  no  delay;  and  the  proof  of  diligence  must  be  clear.* 
It  is  said:  "This  rule  is  one  of  great  practical  importance, 
and  binding  upon  the  court.  It  is  necessary  to  secure  to 
litigant  parties  the  termination  of  their  legal  controver- 
sies.    Every  facility  is  to  be  granted  to  the  parties  to 

»  Holman  v.  The  State,  8  Eng.  195 ;  Gambart  v.  Mavno,  14  Com. 

(13  Ark.)  105;  Wright  v.   State,  B.  (N.)  320;  Mininger  r.  Knox,  8 

34  Geo.  110;  McAffee  v.  State,  31  Min.  140;    Swartzel   v.  Rogers,  3 

ib.  411 ;  Suyder  v.  Myers,  3  W.  Va.  Ivans.  374. 

he  had  no  knowledge  of  the  transaction  :  the  agent  testified,  that  he  had 
not  informed  the  principal  of  the  making  of  the  agreement.  The  plain- 
tifl'  demanded  the  production  of  all  the  correspondence  between  them, 
but  it  was  not  produced.  After  trial  and  judgment  for  the  defendants, 
the  plaintiff"  moved  for  a  new  trial  on  the  ground  of  newly-discovered 
evidence,  consisting  of  the  letters  between  the  defendants  touching  the 
agreement,  and  material  to  the  issues  tried.  Held,  the  failure  of  the 
defendants  to  produce  any  such  correspondence,  coupled  with  their  testi- 
mony, misled  the  plaintiff",  and  excused  his  neglect  in  failing  to  elicit  the 
existence  of  such  correspondence  on  cross-examination,  and  the  motion 
should  be  granted.     Humphrey  v.  Havens,  9  Min.  318. 

Wurtz  V.  Walton.  New  trial.  Opinion  by  Hare,  P.  J.  If  this  case 
stood  as  it  did  at  the  trial,  there  would  be  no  reason  to  disturb  the  ver- 
dict of  the  jury,  who,  resting  on  the  presumption  in  favor  of  a  negotiable 
instrument,  might  justly  disregard  the  unsupported  allegations  of  the 
maker,  that  he  had  received  no  value,  which  were  ingeniously  thrown 
into  the  scale  of  the  defence.  That  a  man  who  is  proved  to  have  ad- 
mitted that  he  made  a  note,  is  also  proved  to  have  said,  in  the  course  of 
the  same  conversation,  that  it  was  without  consideration,  certainly  goes 
but  a  small  part  of  the  way  towards  establishing  that  he  ought  not  to  be 
called  on  for  payment.  But  the  case  is  between  two  brothers,  one  living, 
who  denies  the  obligation  of  the  debt,  the  other  dead,  and  reproscuted 
by  an  administrator;  and  the  after-discovered  evidence  of  a  third  brother 
is  now  adduced,  which,  if  heard  at  the  trial,  would  in  all  probability 
have  changed  the  result.  In  view  of  these  circumstances,  we  think  it 
better  to  give  the  defendant  an  opportunity  to  bring  the  case  before 
another  jury.     Rule  absolute.     Leg.  Intcll. 


496  THE    LAW    OF   NEW    TRIALS.  [CII.  XV. 

present  tlicir  case  fully  at  the  hearing.  This  is  their  day 
in  court ;  this  the  time  to  exhibit  all  their  proofs.  If  they 
lie  by,  through  over-confidence  in  their  own  strength,  or 
in  a  mistaken  belief  in  the  weakness  of  their  adversary, 
and  the  result  is  against  them,  they  must  abide  the  con- 
sequences."^ So  it  is  said  in  an  early  case,  "  Where  a  man 
has  matter  of  defence,  and,  knowing  thereof,  goes  to  trial, 
and  puts  the  plaintiff  to  the  charge  of  proving  his  issue, 
he  shall  never  after,  in  respect  of  that  matter,  have  a  new 
trial.""  It  must  be  made  to  appear  afhrmatively  that  the 
evidence  could  not  have  been  discovered  by  due,  ordinary, 
or  reasonable  diligence.^  A  party  w^ho  neglects  to  make 
a  defence,  known  to  him  at  the  time  when  it  should  have 
been  made,  or  to  adduce  evidence  to  substantiate  it,  of 
which  he  was  then  aware,  or  which  he  could  have  ascer- 
tained with  reasonable  diligence,  and  in  consequence  of 
such  neglect  fails  in  the  controversy,  cannot  subsequently 
renew  it  upon  the  discovery  of  additional  testimony  to 
establish  such  defence.*  So  it  is  held  sufficient  proof  of 
neo'liorence,  if  the  evidence  was  known  before  verdict.^ 
And  this  rule  more  especially  applies,  where,  from  the 
relation  of  the  party  moving  for  the  new  trial  to  the 
person  whose  acts  are  in  controversy,  a  strong  probability 
arises  of  his  previous  knowledge  on  the  subject;  or  where 
the  new  evidence  might  easily  have  been  procured,  both 
on  account  of  the  number  of  persons  knowing  the  facts. 


'  Per    Dewey,    J.,    Gardner    v.  Sinipkins  v.  Wilson,  11  Ind.  o41  ; 

Gardner,  2  Gra}',  444.  Milton  v.  Blacksliear,  8  Flori.  161; 

2  Watson  V.  Sutton.  12  IMod.  583.  Avery  v.  State,  20  Geo.  233;  Lcavv 

3  Dean  v.  Young,  13  S.  it  M.  118.  v.  Roberts,  2  Hilt,  28o  ;  Campbell 
See  Howard  v.  Grover,  28  Maine,  v.  Genet,  ib.  290;  Stearns  v.  Allen, 
97;  Robinoe  v.  Doe,  G  Blackf.  8."J  ;  18  Vt.  11!)  ;  Laflin  v.  Herrington, 
Palmer  ».  Fiske,  2  Curtis  G.  C.  14;  17  HI.  Sno  ;  ]\Iilhird  i\  Singer,  2 
Ham  V.  Ham,  31)  IMaine,  203;  Gard-  Greene,  144  ;  Beard  v.  Simmons,  9 
ner«.  Gardner,  2  Gray,  434;  People  Geo.  4;  Dickson  v.  Mathers,  1 
V.  Mack,  2  Parker,  073  ;  Watts  i\  Hemp.  05  ;  Washburn  v.  Gould,  3 
Johnson.    4   Te.K.    311  ;    Knox   v.  Storv.  122. 

Work,  2  Binn.  582;  Cooke  v.  Berry,  ^  :Srunn  v.  Worrall,  10  Barb.  221 ; 

1  Wils.  \)%  ;  Gist  v.  Mason.  1  T.  R.  Reed  v.  Moore,  3  Ired.  310. 

84 ;  Hope  v.  Atkins,  1  Price,  143  ;  ^  Higdeu  v.  Higdeu,  2  Mar.  42. 


CH.  XX.]  NEWLY-DISCOVERED    EVIDENCE.  407 

and  the  facility  of  access  to  thera.^  Thus  a  new  trial  will 
not  be  granted  for  discovery  of  a  material  will,  without 
proof  that  it  had  been  searched  for  in  the  probate  office.^ 
So  a  new  trial  was  refused,  where  the  assignees  of  the 
bond  in  suit  had  notice  of  an  important  paper  in  the 
hands  of  the  obligee,  but  omitted  to  give  notice  for  its 
production  at  the  trial.^  So,  in  an  insurance  cause,  a 
motion  for  a  new  trial,  for  the  purpose  of  introducing  a 
copy  of  the  proceedings  and  condemnation  of  the  ship 
and  cargo  at  a  foreign  port,  merely  alleged  that  the  evi- 
dence had  arrived  at  !N'ew  York,  but  not  that  it  had  been 
discovered  since  the  trial.  The  motion  was  overruled,  be- 
cause from  the  nature  of  the  case  the  evidence  must  have 
been  known  to  the  party  at  the  time  of  the  loss,  and  he 
must  either  have  been  negligent  in  procuring  it,  or,  if 
not,  should  have  moved  for  a  postponement.*(a) 


'  2  Gray,  445.  ■•  Vaudervoort  v.  Smith,  2  Caines, 

2  Robinoe  v.  Doe,  6  Blackf.  85.       155. 
*  Drayton  v.  Thompson,  1  Bay, 
263. 


(a)  It  must  appear  in  the  application  that  there  was  due  diligence. 
Yoluntary  absence  from  the  State  will  not  excuse  a  want  of  diligence. 
Burnley  v.  Rice,  21  Tex.  171;  Edmiston  v.  Garrison,  18  Wis.  594. 
In  a  suit  against  a  firm  upon  two  notes,  a  new  trial  was  refused, 
upon  the  ground  that  the  defendants  had  just  discovered  that  one 
of  the  notes  was  given  by  mistake,  and  that  the  partner  who  made 
the  notes  did  not  know  that  the  suit  was  brought  upon  the  two 
notes  until  he  was  called  to  the  witness  stand.  Richardson  v.  Farmer, 
36  Mis.  35.  It  is  not  sufficient  that  since  the  trial  the  party  has  disco- 
vered the  materiality  of  evidence  he  knew  of  before.  O'Barr  v.  Alex- 
ander, 37  Geo.  195.  A  general  allegation  of  due  diligence  to  obtain 
testimony  is  not  sufficient,  where  the  new  evidence  is  that  of  a  witness, 
who  was  subpoenaed  by  the  party  moving,  and  in  court  at  the  trial. 
Diligence  must  be  conclusively  shown  in  such  case.  Carson  v.  Cross,  14 
Iowa.  403.  If  the  materiality  of  absent  evidence  is  first  discovered 
during  the  trial,  a  continuance  must  have  been  asked  for.  Klockenbaum 
V.  Piersoii,  22  Cal.  160.  There  must  be  an  affidavit  from  the  prisoner  or 
his  counsel,  that  the  evidence  was  unknown  at  the  trial,  when  it  is  from 
a  witness  who  was  examined  for  the  defence.  Milner  v.  State,  30  Geo. 
32 


498  THE    LAW    OF   NEW    TRIALS.  [CH.  XV. 

§  7.  "A  want  of  recollection  of  a  fact,  whicli  by  due 
attention  might  have  been  remembered,  cannot  be  a 
reasonable  ground  for  granting  a  new  trial;  for  a  want  of 
recollection  may  always  be  pretended,  and  may  be  hard 
to  be  disproved."^  '-'■Recollection  is  not  (liseoven/.  The 
former  deals  with  the  known,  the  latter  with  the  un- 
known. "^  As  in  case  of  the  recollection  by  a  witness, 
and  especially  of  a  party  witness,  of  something  which  he 
did  not  recollect  or  state  when  on  the  stand.^  So,  upon 
like  ground,  where  the  witness  proposed  to  be  called  had 
been  summoned  at  the  former  trial,  but  dismissed  without 
examination.-* 

§  8.  But  a  new  trial  was  granted,  though  the  counsel, 
upon  seeing  a  commission,  which  first  came  to  hand  a  few 
days  before  the  trial,  suspected  from  it  that  some  new  in- 
formation might  be  obtained.^ 

§  9.  The  discovery  of  neiv  documentary  evidence,  that 
might  have  been  obtained  in  season,  will  not  authorize  a 
new  trial.*'  So,  where  the  newly-discovered  evidence  was 
all  of  record,  in  the  court,  or  in  a  public  office,  and  might 
have  been  found  by  reasonable  search,  it  was  held  that 
this  furnished  no  reason  for  a  new  trial.^  So  in  case  of  a 
recorded  deed  or  judgment.^     So  where  a  verdict  was 

'  Per  Parsons,    C.  J.,  Bond  v.  ^  Marshall    v.    Union,    &c.,    2 

Cutler,  7  Mass.  205.  Wash.  Cir.  411. 

2  Per  Ames,  C.  J.,  Johnson  v.  ^  Tillman ».  Hatcher,  1  Rice,  271. 
Blanchard,  5  R.  I.  26.  See  Gregg  ?  Morgan  v.  Houston,  25  Vt.570; 
V.  Bankhead,  22  Tex.  245.  Vardeman   v.    Edwards,   21    Tex. 

3  Johnson  v.  Blanchard,  5  R.  I.  7;'>7  ;  Simpkins  v.  Wilson,  11  Ind. 
24.  041. 

^  Wilbor  V.  Gillicuddy,  3  Mill.  «  "VVeimer  v.  Lowcry,  11  Cal.  104; 
(La.)  382.  Reed  v.  Moore,  3  Ired.  310. 

137.  Upon  similar  grouud  the  application  must  be  made  as  soon  as  pos- 
sible. Cutler  V.  Columbia,  1  Oreg.  101.  Where  the  causes  are  disco- 
vered after  the  term  at  which  the  verdict  or  judgment  was  rendered,  the 
complaint  should  clearly  show  it.  Tillson  v.  Crim,  22  Ind.  357.  Want 
of  time  to  procure  the  necessary  affidavits  is  no  excuse  for  the  want  of 
them,  when  no  motion  was  made  to  postpone  the  rule.  Johnson  v.  Lovett, 
31  Geo.  187. 


CH.  XV.]  NEWLY-DISCOVERED   EVIDENCE.  499 

given  against  the  validity  of  certain  notes  in  suit,  they 
having  been  given  in  exchange  for  others,  and  the  defen- 
dant having  been  superseded  by  his  assignees  in  the  de- 
fence; a  new  trial  was  refused,  the  insolvent  disclosing, 
after  the  trial,  that  the  old  notes  had  been  returned  to 
him.^ 

§  10.  But  a  new  trial  was  granted,  for  the  purpose  of 
introducing  documents  from  the  custom-house  at  New 
York,  which  would  invalidate  some  of  the  testimony,  and 
show  an  alleged  sale  to  have  been  a  mere  order,  and  the 
property  in  question  not  neutral.^ 

§  11.  That  counsel  were  ignorant  of  newly-discovered 
evidence,  is  no  ground  of  new  trial,  unless  the  party  also 
were  ignorant  of  it.^ 

§  12.  But  a  new  trial  was  granted,  where  the  defen- 
dant's attorney  made  affidavit,  that  on  the  first  day  of 
the  term  the  defendant  had  sailed  for  Barbadoes,  and  that 
since  the  trial  he  (the  attorney)  had  found  in  a  memo- 
randum-book of  the  defendant  a  receipt  in  full  from  the 
plaintiff.* 

§  13.  Newly-discovered  evidence,  merely  cumulative^  is 
no  ground  for  a  new  trial.^    It  must  appear  affirmatively 

'  Whetmore  ».  Murdock,  3  W.  &  Stimpson  v.  Wilsou,  6  Ind.  474  ; 

M.  380.  The  Commonwealth  v.  Flanagan, 

2  Marshall  v.  The  Union,  &c.,  2  7  Watts  &  Serg.  415  ;    Ferrin  v. 
Wash.  Cir.  411.  Protection  Ins.  Co.,  11  Ohio,  147 ; 

3  Fikes  V.  Bentley,  1  Hemp.  61.      Schlencker    v.    Eisley,    3    Scam. 
^  Broadhead  v.  Marshall,  2  W.     483;  Smith   v.  Schultz.  1  lb.  499  ; 

Bl.  955.  Brown  v.  Stacy,  5  Pike,  403 ;  Wig- 

5  Moore  «.  Ulm,  34  Geo.  565  ;  gin  v.  Coffin,  3  Story,  1  ;  Den  v. 

Merryman  v.  Ryan,  24  Ind.  202  ;  Wintcrmute,    1    Green,   177 ;  The 

Spencer  v.  Doane,  23  Cal.  418 ;  Al-  Commonwealth  B.Murray,  2  Ashm. 

drich  V.  Palmer,  24  ib.  513  ;  Cox  41 ;    The    Commonwealth  v.  AVil- 

V.  Hutchings,  21   Ind.  219  ;  Stur-  liams,  ib.  09  ;  Jennings  v.  Loring, 

gcon  V.  Ferron,  14  Iowa,  160;  Wil-  5   Ind.   250 ;    Jones  v.  White,    11 

helnii    v.    Thorington,     ib.     537 ;  Humph.  208 ;  Palmer  v.  Fiske,  2 

Harnsbarger  v.  Kinney,  13  Gratt.  Curt.  14  ;  Ham  v.  Ham,  39  Elaine, 

511  ;  Bagge  v.  Lynch,  22  Mis.  503;  203;  Gardner  v.  Gardner,  2  Gray, 

Dossett    V.  Miller,    3  Sneed,  72 ;  434 ;   Wrights  v.   Greenwood,   17 


500  THE    LAW    OF    NEW    TRIALS.  [CII.  XV. 

tliat  the  evidence  is  not  cumulative.^  It  is  said,  if  the 
rule  were  othenvisc,  "not  one  verdict  in  ten  would  stand. 
Some  corroborating  evidence  may  always  be  found  or 
made;  and  tlie  trial  by  jury  would  become  the  most  pre- 
carious of  all  trials."-  So,  in  another  case,  "It  cannot 
be  permitted  that  eitlier  party  shall  produce  just  so  much 
evidence  as  he  thinks  proper,  and  then  stop  short,  and 
ultimatelj^  obtain  a  new  trial,  on  the  ground  that  he  did, 
on  the  iirst  trial,  give  all  the  evidence  which  he  then 
might,  and  has  since  found  he  ought  to  have  given  more."^ 
And,  in  another  case,  with  more  sjiecial  reference  to  the 
multiplication  of  witnesses  to  one  point,  "It  is  said,  that 
if  a  new  trial  be  granted,  there  are  two  witnesses,  who 
were  not  known  to  the  defendants  at  the  time  of  the  trial, 
Avho  can  testify  as  to  the  destination  of  the  Catharine. 
This  was  the  fact  principally  controverted  on  the  former 
trial,  and  we  are  now  applied  to  for  another,  merely  be- 
cause all  the  witnesses  who  knew  something  of  the  matter 
have  not  been  examined.  Every  one  must  perceive  the 
inconvenience  and  delay  which  will  arise  from  granting 
new  trials  upon  the  discovery  of  new  testimony,  or  other 
witnesses,  to  the  same  fact.  It  often  happens  that  neither 
party  knows  all  the  persons  who  may  he  acquainted  Avith 
some  of  the  circumstances  relating  to  the  point  in  contro- 
versy. If  a  suggestion  then,  of  the  present  kind,  be 
listened  to,  a  second,  if  not  a  third,  and  a  fourth  trial  may 
always  be  had.  There  may  be  many  persons  yet  unknown 
to  the  defendants,  who  may  be  material  witnesses  in  this 
cause,  and  this  may  continue  to  be  the  case  after  a  dozen 
trials."-* 

Geo.  418;    Latham  v.  Selkirk,   11  Stewart  v.  Hamilton,  19  Tex.  OG  ; 

Tex.  314 ;  Castro  v.  Wurzbach,  13  Ilandley  v.  Call,  30  Maine,  J). 

ib.    128;    State  v.    Larimore,    20  '  Robins  ».  Fowler,  2  Pike,  133. 

Mis.  425  ;  AVells  v.  Sanger,  21  ib.  ^  Per    Boudinot,    J.,   Jessup   v. 

354  ;  Clark  v.  Carter.  12  Ceo.  500  ;  Cook,  1  Halst.  434. 

Live,  etc.  V.  Oregon,  *fcc.,  7  Cal.  40;  »  Per  Bayley,  J.,  Doc  v.  Price,  1 

Coggin  V.  Jones,' 29  Geo.  257  ;  Mil-  Man.  &  Ky.  G83. 

ton    V.   Blackshear,    8   Flori.  IGl  ;  *  Per  Livingston,  J.,   Steinbach 

Newcjnib  i\  State,  37  Miss.  383;  v.  The  Colmubiau,  &c.,  2  Caiues, 

Mauix  V.  Malory,    7   Clarke,  81  ;  129. 


CII.  XV.]  NEWLY-DISCOVERED    EVIDENCE.  501 

§  14.  Witli  regard  to  the  nature  of  cumulative  evi- 
dence, it  is  remarked  by  the  court  in  Massachusetts, 
"whether  particular  testimony  is  cumulative  or  not,  is 
often  a  question  of  some  nicety.  This  court  has,  in  com- 
mon with  many  other  tribunals,  been  disposed  to  limit 
this  objection  as  to  cumulative  testimony  to  that  which  is 
most  obviously  so,  and  not  to  apply  it  to  all  testimony 
tending  to  establish  the  same  fact."  As  where  it  differs 
in  kind.  Thus,  if  the  former  evidence  was  wholly  circum- 
stantial, and  the  new  evidence  is  positive  and  direct.'  Cu- 
mulative evidence  is  held  to  be  evidence,  which  speaks  to 
facts  in  relation  to  which  there  was  evidence  on  the  trial.' 
Or  additional  evidence,  of  the  same  kind,  to  the  same 
point.^  Evidence  is  not  cumulative  if  of  a  distinct  species 
from  any  that  was  given  at  the  former  trial  ;^  though 
intimately  connected  with  some  parts  of  the  former 
testimony.^  Or  if  it  relate  to  distinct  and  independent 
facts  of  a  diiierent  character,  though  tending  to  establish 
the  same  ground  of  claim  or  defence."  Or  to  a  matter 
that  has  come  to  light  since  the  trial,  and  on  which  the 
party  has  never  been  heard.''  Cumulative  is  sometimes 
spoken  of  as  equivalent  to  corroboiritive  evidence.^  Or  as 
evidence  relating  to  a  principally  controverted  fact.^  Or  as 
relating  to  the  facts  proved,  whether  bearing  upon  the 
issue  directly  or  collaterally.'*'  It  is  said:  "  We  are  not  to 
look  at  the  effect  to  be  produced  as  furnishing  an  infallible 
criterion.  The  kind  and  character  of  the  facts  make  the 
distinction.  It  is  their  resemblance  that  makes  them 
cumulative."'^     Thus,  in  an  action  relating  to  the  settle- 


'  Per  Dewpy,  J.,  3  Gray,  443.  ^  39  Coun.  305. 

2  McGavock  )'.  Brown,  4Humph.  ^  Deu  v.  Wiutermute,  1  Green-, 
251 ;  Kihy  v.  Waterford,  14  Verm.  177. 

414  ;    Withers   v.   Butts,  7  Dana,  »  Smith  v.  Brush,  8  John.  84. 

329  ;  Bcauchamp  v.  Sconce,  13  Mis.  s  3  Gaines,  139;  8  Jolin.  84;  Pike 

57.  v.  Evans,  15  John.  310  ;  Whitbeck 

3  Glidden  v.  Dunlap,  28  ]\Iaine,  v.  WMiitbeck,  9  Cow.  3(10. 

379.  '0  Loavv  v.  Roberts,  3  Hilt.  285. 

<  Watts  V.  Howard,  7  Met.  478.  "  Per  Marey,  J.,  Guyot  v.  Butts, 

5  Vardemau   v.  Byrne,  7  How.  4  Wend.  570. 
(Miss.)  365. 


502  THE   LAW    OF   NEW    TRIALS,  [CII.  XV. 

ment  of  a  pauper,  the  facts  and  testimony  at  tlie  trial 
applied  to  a  period  subsequent  to  the  year  1801,  and  to  a 
statute  passed  in  that  year.  It  was  held  that  new  evi- 
dence, relating  to  a  residence  and  settlement  at  an  ante- 
cedent period,  was  not  cumulative. ^(a) 

'  Kirby  v.  Waterford,  14  Verm.  414. 

(a)  It  is  said,  tlie  best  definition  of  the  term  "  cumulative  evidence," 
is  that  in  Parker  v.  Hardy,  24  Pick.  246  (Mass.),  viz. :  "  cumulative  evi- 
dence is  additional  evidence  of  the  same  kind,  to  the  same  point."    Bra- 
dish  V.  State,  35  A"t.  452.     Evidence  is  cumulative,  when  it  goes  to  the 
fact  principally  controverted  on  the  former  trial,  and  respecting  which 
the  party  produced  testimony.     Grubb  v.  Kalb,  37  Geo.  459.     Evidence 
of  admissions  is  not  cumulative,  when  there  has  been  no  other  evidence 
of  such  admissions.     Gray  v.  Harrison,  1  Ncy.  502  ;  Collins  v.  Loyd,  31 
Geo.  128.     Admissions  and  conversations  of  a  defendant,  in  direct  con- 
flict with  his  testimony  and  with  the  theory  of  his  defence,  are.  not  im- 
peaching, but  original  evidence.     Alger  v.  Merritt,  16  Iowa,  121.     Evi- 
dence which  is  specifically  distinct  and  bears  upon  the  issue  is  not  cumu- 
lative, though  it  may  be  intimately  connected  with  parts  of  the  other 
testimony.     Ibid.     "Where,  in  an  action  against  the  drawer  of  a  check, 
it  is  alleged  in  defence  that  the  check  Avas  given,  with  the  understanding 
that  it  was  not  to  be  paid  except  from  funds  to  be  received  from  A.,  at 
whose  request  it  was  made,  and  that  the  plaintiff"  knew  of  such  under- 
standing ;  and  the  evidence  to  support  such  allegation  is  controverted  by 
the  plaintifT's  testimony ;  and  it  is  ascertained,  subsequently  to  the  trial, 
and  a  verdict  for  the  plaintiff,  that  the  plaintiff"  had  declared,  that  he 
knew  when  he  received  the  check  that  it  was  a  loaned  check,  and  no 
consideration  paid  for  it :  a  new  trial  may  be  granted.     Oakley  v.  Sears, 
1  Rob.  73.     In  an  action  on  a  note,  the  defendants  were  not  allowed  to 
show  the  value  of  confederate  currency  at  the  date  of  the  note,  in  order 
to  take  advantage  of  the  "  scaling  ordinance,"  the  consideration  of  the 
note  not  having  been  shown.     The  defendants  afterwards  moved  for  a 
new  trial  in  order  that  they  might  show,  by  their  own  testimony,  that  the 
consideration  of  the  note  was  confederate  currency,  parties  having  been 
made  competent  witnesses  by  an  act  of  the  legislature  passed  since  the 
previous  trial.     Held,  the  motion  was  properly  granted.     Hill  v.  Van- 
duzer,  37  Geo.  293..  Where  the  genuineness  of  a  signature  has  been  put 
in  issue,  newly-discovered  evidence  of  forgery  is  held  cumulative.  AV right 
V.  Carillo,  22  Cal.  595.    Where  one  had  failed  in  his  defence  to  a  charge 
of  larceny— that  he  purchased  the  alleged  stolen  articles— by  the   im- 
peachment of  his  witness,  and  neglected  to  summon  two  other  witnesses 


CH.  XV.]  NEWLY-DISCOVERED   EVIDENCE.  503 

§  14«.  In  Illinois,  a  second  new  trial  in  ejectment,  under 
Rev.  Sts.  c.  36,  was  refused,  upon  the  ground,  in  part,  that 
the  evidence  on  which  the  motion  was  based  was  merely 
cumulative  in  character.^  So,  where,  on  the  first  trial,  the 
main  fact  was  proved  by  a  single  witness  for  the  plaintiiF, 
and  the  defendant  then  sought  to  overcome  his  testimony 
by  proof  of  his  own  statements,  and  of  circumstances  in- 
consistent with  such  fact,  and  the  defendant  moved  for  a 
new  trial,  on  the  ground  of  a  newly-discovered  witness, 
who  would  prove  similar  inconsistent  acts  and  statements; 
it  was  held,  that  the  evidence  was  cumulative,  and  a  new 
trial  was  refused.-  So  where  an  affidavit  was  made  by 
one  who  had  been  a  witness  in  the  cause,  swearing  to 
further  important  facts  not  stated  by  him  at  the  trial,  be- 
cause his  recollection  did  not  serve  him.^  So  newly-dis- 
covered evidence  of  a  boy's  school-fellows,  as  to  his  capa- 
city to  write  a  certain  paper,  purporting  to  be  written  by 
him,  the  genuineness  of  which  is  material  to  the  issue,  is 
cumulative  of  evidence  given  to  the  same  point  at  the 
trial  by  his  teachers  and  by  medical  men.^  Judge  Dewe}^ 
remarks :  "  It  is  in  part  a  different  kind  of  evidence,  if 
the  source  from  which  it  comes  gives  it  that  character, 
but  generally  it  is  not  only  testimony  to  the  same  facts, 
but  also  by  the  same  class  of  witnesses  as  testified  at  the 
trial.  "5 

§  15.  The  following  distinction  is  taken,  with  reference 

>  Laflin  «.  Ilerringtou,    17   111.        '  Tomlin  v.  Den,  4  Harr,  7G. 
399.  ''  Gardner  v.  Gardner,  2  Gray, 

-  Brisbane  v.  Adams,  1   Sandf.     434. 
195.  5  2  Gray,  444. 

of  the  purcliase,  from  an  erroneous  impression,  that,  by  reason  of  their 
youth — one  being  eleven,  the  other  twelve  years  old — they  would  not  be 
allowed  to  testify  ;  held,  a  new  trial,  asked  on  the  ground  of  newlj'-dis- 
covered  corroborative  evidence,  was  properly  refused.  Bales  v.  State,  3 
W.  Ya.  685.  A  party  is  not  entitled  to  a  new  trial  on  the  ground  of 
newly-discovered  evidence  which  is  cumulative  to  testimony  given  by 
himself.     Fox  v.  Keyuolds.  24  lud.  46. 


504  THE   LAW   OF   NEW    TRIALS.  [CIL  XV. 

to  the  iiaturo  of  the  points,  upon  wliich  new  evidence  is 
or  is  not  likely  to  be  cuniulative.  "  A  new  witness  to 
character,  credit,  handwriting,  dates,  absences,  violences, 
and  the  like,  might  be  found  after  half  a  dozen  trials.  It 
ought  to  respect  a  new  point — one  that  has  come  to  light 
since  the  trial,  on  which  the  party  has  never  been  heard — 
such  as  the  discovery  of  a  release,  or  receipt  for  part  pay- 
ment, or  some  new  ground  of  defence."' 

§  16.  In  conformity  with  this  distinction,  a  new  trial 
was  refused  on  account  of  new  evidence  as  to  a  date? 

§  17.  But  although  the  rule,  that  a  new  trial  will  not 
be  granted  on  account  of  newly-discovered  cumulative 
evidence,  is  a  rule  that  will  be  relaxed  with  great  caution;' 
yet  it  is  said,  "  The  court  ought  not  to  shut  their  eyes  to 
injustice  on  account  of  facility  of  abuse  in  cases  of  this 
sort."Xa)  And  it  is  sometimes  held,  that  they  will  not 
refuse  a  new  trial  on  the  ground  of  newly-discovered  evi- 
dence, for  the  reason  that  such  evidence  is  cumulative 
merely,  if  it  is  sufficient  to  render  clear  that  which  before 
was  a  doubtful  case.^  Or  in  a  nicely -balanced  case."^  Or 
if  it  is  conclusive.'^     Or  of  such  a  character  as  yrimd  facie 

'  Den  V.  Wintermute,  1  Green,  305.     See  Porter  v.  The  State,  2 

177.  Cart.  435. 

2  Mitchell  1}.  Printup,  25  Geo.  ^  Gardner  v.  Mitchell,  6  Pick. 
182.  116. 

3  Jewin  V.  Morell,  Dudley,  Geo.  ?  Briggs  v.  Gleason,  1  Williams, 
72.  114  ;  Potter  v.   Padelford,  3  R.  I. 

<  Gardner  v.  Mitchell,    6   Pick.  162 ;    Watts  v.  Johnson,  4    Tex. 

116.  311  ;    Robinson  v.  Martel,  11   ib. 

5  Barker  v.  French,  18  Verm.  149  ;  Bixby  v.  State,  15  Ark.  395. 
460 ;  Waller  v.  Graves,  20  Conn. 

(a)  A  new  trial  will  not  generally  be  granted  on  the  ground  of  newly- 
discovered  cumulative  evidence.  Powell  v.  Jones,  42  Barb.  24;  Edmis- 
ton  V.  Garrison,  18  Wis.  .594.  Newly-discovered  cumulative  evidence 
furnishes  no  ground  for  a  new  trial,  unless  it  is  of  so  controlling  a  cha- 
racter that  it  would  probably  cliange  the  verdict.  Windham  v.  Kendall, 
7  R.  I.  77  ;  State  v.  O'Brien,  ib.  336 ;  Ileaton  v.  Manhattan,  ib.  502 ; 
Levitsky  v.  Johnson,  35  Cal.  41. 


CH.  XV.]  NEWLY-DISCOVERED   EVIDENCE.  505 

to  raise  a  strong  probability  that  it  will  be  decisive  of  the 
case.^  Thus,  where  the  ground  of  defence  to  an  action  for 
a  libel,  brought  by  A.  against  B.,  was,  that  the  libellous 
writing,  after  it  was  signed  by  B.,  and  before  publication, 
was  altered,  by  the  insertion  therein  of  material  words, 
without  the  knowledge  or  approbation  of  B. ;  and  C,  who 
drew  up  the  writing,  testified  that  the  writing,  as  pub- 
lished, did  not  contain  the  words  in  question ;  and  it  was 
afterwards  discovered  that  D.,  without  the  knowledge  or 
consent  of  either  B.  or  C,  inserted  those  words :  on  a 
petition  for  a  new  trial,  brought  by  B.,  held,  that  the 
testimony  of  D.  was  not  cumulative.^ 

§  18.  A  judgment,  which  would  operate  as  an  estoppel, 
is  not  cumulative.^  So  it  is  held  sufiicient  cause  for  a 
new  trial,  that  the  successful  party,  after  the  verdict, 
made  an  admission  in  respect  to  a  fact  material  to  the 
issue,  which,  if  proved,  would  probably  produce  a  different 
result.''(a) 

§  19.  ]^ewly-discovered  evidence,  which  goes  only  to 
impeach  the  credit  or  character  of  a  witness,  is  not  suffi- 
cient ground  for  a  new  trial.^    Nor,  it  is  said,  certainly 

1  Burr  V.  Palmer,  23  Vt.  3-44.  s  "VVriglit  v.  State,  34  Geo.  110  ; 
See  Snowman  v.  Wardwell,  33  Territory  v.  Lutsliaw,  1  Oreg.  146; 
Maine,  375.  Stoalies    «.  Monroe,    3G  Cal.   383  ; 

2  "Waller  v.  Graves,  30  Conn.  Jaccard  v.  Davis,  43  Mis.  535  ;  Bar- 
305.  rett  v.  Belsliee,  4  Bibb.  348  ;  Mcln- 

3  Lane  v.  Holliday,  27  Geo.  339.     tire  v.  Young,  6  Blackf.  490 ;  Deer 
*  Welch  V.  Nasboe,  8  Tex.  189 ;     v.  The  State,  14  Mis.  348  ;  Beard 

Guyot  V.  Butts,  4  Wend.  579  ;  j\[y-  v.  Simmons,  9  Geo.  4  ;  Meakim  v. 
ers  V.  Brownell,  3  Aik.  407  ;  Gard-  Anderson,  11  Barb.  315  ;  Harring- 
ner  v.  Mitchell,  6  Pick.  114.  tou'y.Bigelow,  3  Denio,  109;  Brugli 

(a)  But,  on  the  other  hand,  a  new  trial  was  granted,  where  a  special 
verdict  had  been  rendered,  founded  upon  certain  admissions,  which  after- 
wards appeared  to  have  been  made  under  a  mistake  of  facts.  Jackson 
V.  Cannon,  2  Cow.  615.  Where  a  suit  was  brought  against  one  of  two 
parties,  both  of  whom  were  liable ;  and  a  new  trial  was  moved  for,  on 
the  ground  of  newly-discovered  evidence  that  the  plaintiff  had  casually 
declared  he  should  only  look  to  the  other  party  for  payment :  the  motion 
was  denied.     Dugan  v.  McDonald,  2  Tex.  355. 


506  THE   LAW    OF   NEW    TRIALS.  [CH.  XV. 

except  in  rare  cases,  if  tlic  evidence  is  material  only  to 
contradict  witnesses  sworn  on  the  former  trial.^  Especially 
where  their  testimony  operates  unfavorably  only  by  way 
of  inference,  and  when  other  evidence  is  very  strong  in 
favor  of  the  prevailing  party. ^(rt)     In  a  leading  case  upon 

V.  Shanks,  5  Leigh,  598  ;  The  State  201  ;    Boggs  v.   Lynch,    23     Mis. 

v.  Henley,  R.  M.  Charlt.  505  ;  Den  563  ;  2  Denio,  109  ;    Dickinson  v. 

V.  Geiger,  4  Ilalst.  225  ;  Fleming  v.  Solomons,  2G  Geo.  G84  ;  Fleming 

State,    11    Ind.    234 ;    Duryee   v.  v.   Ilollenback,  7  Barb.  271 ;  Hal- 

Dennison,  5  John.  248 ;  Iluish  v.  sey  v.  Watson,  1  Gaines,  24. 
Sheldon,  Sayer,  27.  ^  Tuttle  v.  Cooper,  5  Pick.  414, 

1  Williams  v.  People,  45  Barb. 

(a)  A  new  trial  may  be  granted,  on  account  of  newly-discovered  evi- 
dence to  impeach  a  principal  witness  at  the  trial,  when  the  applicant  had 
good  reason  to  expect  that  such  witness  would  testify,  and  did  not  use 
proper  diligence  to  ascertain  his  reputation  for  veracity.  Tappin  v. 
Clarke,  32  Conn.  367.  The  court  may  refuse  a  new  trial  on  the  affidavit 
of  a  party  that  a  witness  swore  differently  at  a  former  trial,  and  that  he 
had  since  discovered  that  he  could  prove  it.  Judge  v.  Moore,  9  Flori. 
269.  Newly-discovered  evidence,  that  one  of  the  witnesses  had  pre- 
viously to  the  trial  stated,  that  J.  (the  losing  party)  had  sworn  falsely 
against  him,  and  he,  the  witness,  "  would  pay  him  back  in  his  own  coin," 
and  that  another  witness  had  declared  that  J.  was  trying  to  get  her 
sister's  (decedent  of  the  winning  party)  property,  and  that  she  would 
"  stoop  to  anything  to  stop  him  ;"  held  insufficient  therefor.  Jackson  v. 
Sharpe's,  29  Ind.  167.  The  mere  fact,  that  the  verdict  seriously  damages 
the  character  of  the  applicant — he  having  been  called  as  a  witness — by 
contradicting  his  evidence,  where  it  cannot  be  said  to  be  against  the 
weight  of  evidence,  is  no  sufficient  ground  for  a  new  trial,  though  coupled 
with  new  evidence  tending  to  vindicate  his  character ; — no  surprise  being 
shown.  If  the  apparent  alternative  is,  that  either  he  must  have 
been  guilty  of  perjury  and  forgery,  or  a  servant  of  the  plaintiff  guilty 
of  embezzlement,  and  the  verdict  appears  to  point  to  the  former  conclu- 
sion, and  he  shows  the  court  that  he  has  discovered  evidence  that  the 
servant  was  actually  discharged  for  embezzlement ;  that  might  be  ground 
for  a  new  trial,  although  no  technical  "  surprise"  be  shown.  But,  if  the 
fact  thus  stated  be  contradicted  distinctly  by  the  affidavit  in  answer,  and 
if,  moreover,  it  be  not  satisfactorily  shown  how  it  was  that  the  defendant 
did  not  discover  the  supposed  fact  before  the  trial,  it  being  of  such  a 
nature  that  it  might  naturally  and  reasonaljly  have  been  the  subject  of 
inquiry  on  his  part;  the  court  will  not  grant  a  new  trial.  Lewis  v.  Truss- 
ler,  25  Eng.  Law  and  Eq.  422. 


CH.  XV.]  NEWLY-DISCOVERED  EVIDENCE.  507 

this  point,  the  Superior  Court  liaving  granted  a  new  trial 
for  newly-discovered  evidence  to  impeach  an  important 
witness;  a  motion  was  made  to  the  Supreme  Court  for  a 
mandamus^  on  the  ground  that  the  court  below  had  as- 
sumed to  exercise  their  discretion  in  opposition  to  a  well- 
settled  rule  of  practice.  An  alternative  mandamus  was 
granted;  and,  after  a  subsequent  hearing  upon  demurrer, 
was  made  peremptory.^ 

§  20.  So  the  defendant,  in  a  criminal  case,  is  not  en- 
titled to  a  new  trial,  on  the  ground  of  having  discovered, 
since  the  trial,  that  the  witnesses  for  the  State,  who  had 
been  for  a  long  time  subpoenaed,  could  be  discredited,  by 
showing  their  reputation  for  veracity  to  be  bad.^  So  on 
the  trial  of  an  indictment  for  obtaining  goods  by  false 
pretences,  a  book  was  produced  in  evidence,  in  which  the 
representations  made  by  the  defendant  at  the  time  of  pro- 
curing the  goods  were  recorded,  and,  after  conviction,  the 
counsel  for  the  defence  moved  for  a  new  trial,  because 
since  the  trial  it  had  been  discovered,  upon  the  examina- 
tion of  the  book,  that  the  entry  made  therein  of  such 
representations  by  the  prosecutor,  and  sworn  to  by  him  as 
having  been  entered  at  the  time  they  were  made,  was,  in 
fact,  entered  many  weeks  after  the  making  of  such  repre- 
sentations, and  because  the  jury  were  misled  by  such 
statements  of  the  prosecutor  and  the  prosecuting  officer, 
in  relation  to  the  time  of  such  entry.  Held,  that  this 
was  no  ground  for  a  new  trial.^  So  where  the  new  testi- 
mony could  only  change  the  result,  by  destroying  the 
credit  of  two  daughters  of  the  prevailing  party,  and  virtu- 
ally declaring  them  guilty  of  conspiracy  and  perjury.* 

§  21,  Strong  cases  in  illustration  of  this  rule  are,  where 
a  witness  had  been  asked  if  he  was  never  burnt  in  the 

'  The  People  v.  Superior  Court,  3  The  Commonwealth  v.  Renish, 
&c.,  5  Wend.  114 ;  10  ib.  385.  Thacher's  Cnm.  Cas.  G84. 

2  Herbert).  The  State,  7  Tex.  69.         ^  Gardner  v.  Gardner,  3  Gray, 

440. 


508  THE  LAW  OF  NEW  TRIALS.         [CU.  XV 

hand  for  stealing  a  tankard  ;  to  which  he  answered  "  no  ;" 
and  a  new  trial  was  moved  for  upon  producing  the  record 
of  conviction ;  but  the  motion  was  overruled.^  So  it  was 
held  not  to  be  ground  for  new  trial,  that  since  the  trial  a 
Avitncss  had  declared,  that  "he  would  swear  falsely  in  any 
action  for  four  pence  half-pcnuj^  a  time,  and  that  he  be- 
lieved, when  he  should  die,  that  he  would  perish  like  a 
brute;"  more  especially  as  evidence  had  been  offered  at 
the  trial,  which  successfully  discredited  this  witness.^ 

§  22.  And  it  is  held  that  a  new  trial  will  not  be  granted, 
for  the  confessions  of  a  witness  as  to  his  own  incompe- 
tency.^ Though  there  are  other  cases  to  the  contrary,* 
especially  if  accompanied  by  a  confession  of  the  party.^ 

§  23.  The  question  often  arises,  in  connection  with  a 
charge  of  perjury  against  the  witness  whom  it  is  designed 
to  impeach.  A  new  trial  was  refused,  where  the  principal 
witness  for  the  plaintiff  had  been  subsequently  indicted, 
with  the  plaintiff  and  others,  for  a  conspiracy  to  defraud 
the  defendants.  In  this  case  it  was  said :  "  I  find  many 
applications  for  new  trials,  on  the  ground  of  bills  found 
by  the  grand  jury,  but  none  in  which  the  application  has 
succeeded."''  And  it  is  held  that  the  court  will  not  set 
aside  a  verdict  obtained  by  perjury  unless  the  witness  has 
been  convicted  of  perjury,  or  has  died  since  the  trial,  and 
his  conviction  thus  been  rendered  impossible.'^  So  a  rule 
to  stay  execution,  till  after  the  trial  of  an  indictment  of 
the  plaintiff's  witnesses  for  perjury,  was  discharged  with 
costs.^     So  a  petition  to  file  a  supplemental  bill,  because 


'  Ford  V.  Tilly,  3  Salk.  O.lf].  ^  Thurtell  v.  Beaumont,  1  Bing. 

2  Hammond  D.  Wadliains,  o  Mass.  339.     But  see  Fabrilius  ».  Cock,  3 
353.  Burr.  1771. 

3  Waite's  Case,  5  Mass.  2G1.  ^  Dyche  v.  Patton,  3  Jones,  Eq. 
*  Fabrilius  v.  Cock,  3  Burr.  1771 ;  333. 

Lister  v.  Mundcll,  1  B.  &  P.  427;  s  Wanvick  v.  Bruce,  4  M.  &  S. 

Chatfield  v.  Latlirop,  6  Pick.  417.  140. 

'^  Chatfield  v.  Latlirop,  6  Pick. 
417. 


CII.  XV.]  NEWLY-DISCOVERED   EVIDENCE.  509 

the  defendant  had  on  the  plaintiff's  testimony  been  in- 
dicted and  convicted  for  perjury,  was  dismissed.^  (Pro- 
bably, however,  the  practice  on  this  subject  is  much  less 
rigid  than  these  cases  would  indicate.) 

§  24.  And  a  now  trial  will  not  be  granted,  to  enable  a 
respondent  to  use  the  evidence  of  persons  charged  as 
accomplices,  who  were  acquitted  on  a  joint  trial.  If  no 
material  evidence  is  introduced  by  the  prosecutor  against 
any  particular  one  of  the  respondents,  the  course  is  to 
move  that  the  jury  may  pass  on  his  case  separately;  and, 
if  he  is  acquitted,  he  may  then  be  a  witness  as  to  the 
others.^ 

§  24a.  But  a  new  trial  was  ordered,  on  account  of  after- 
discovered  written  evidence,  which  might  have  aiFected 
the  credit  of  a  witness  before  the  jury.^  And  it  is  some- 
times said,  that,  as  a  general  rule,  subject  to  a  few  excep- 
tions, new  trials  are  not  granted  for  the  impeachment  of 
witnesses.^  That  a  new  trial  is  i-arely,  if  ever,  granted  on 
account  of  newly-discovered  evidence,  if  the  only  object 
of  the  evidence  be  to  impeach  the  character  of  a  witness.' 
But  that  cases  may  arise,  so  imperative,  as  to  require  the 
interposition  of  the  court  to  prevent  a  palpable  wrong.^ 
And,  in  'New  York,  the  general  rule  has  been  held  inap- 
plicable to  questions  of  title  to  lands  in  the  military  tract; 
upon  the  ground  that  the  nature  of  the  cases  involves 
peculiar  obscurity  and  opportunity  for  fraud,  and  also 
questions  of  identity.'^ 

§  25.  IN'ewly-discovered  evidence,  of  hostility  to  the 
defendant  in  a  criminal  action,  on  the  part  of  a  witness, 

'  Bartlett  v.    Pickersgill,    4    E.  435 ;     16    111.    31G ;     Thompson's 

577,  n.  Case.  8  Gratt,  037. 

^  State  V.  Beau,  86  N.  H.  132.  s  Bland  v.  The  State,  2  Cart.  (i08. 

3  Durant  v.  Asbmore,  3    Rich.  *  Cochran  «.  Amnion,  IG  111.  316. 

184.  '  Jackson  v.  Kinney,   14   John. 

1  Porter  v.  The   State,   3  Cart.  186 ;  Jackson   v.  Hooker,  5  Cow. 

207. 


510  THE    LAW    OF   NEW    TRIALS.  [CH.  XV. 

whose  testimony  was  used  against  the  defendant  at  the 
trial,  is  not  a  cause  for  a  new  triaL^ 

§  26.  It  is  no  ground  for  a  new  trial,  that  a  witness  for 
the  party  asking  it,  who  had  been  excused  from  testifying 
because  his  evidence  miglit  subject  him  to  a  penalty,  has 
promised  to  testify  upon  a  new  trial.'  ISTor  that  a  witness 
was  precluded  from  testifying  by  reason  of  interest, 
although  that  interest  has  been  removed.^  Nor  that  a 
witness  used  expressions,  after  a  trial,  contradicting  his 
testimony.^  Nor  that  a  man  declares  to  a  bystander,  that 
he  knows  more  of  the  matter  than  all  the  witnesses  ex- 
amined, and  then  leaves  the  court  before  a  subpoena  can 
be  served  on  him.^  JSTor  the  voluntary  withdrawal,  during 
the  trial,  of  a  witness  who  has  been  subpoenaed  on  behalf 
of  the  State,  but  not  examined,  especially  where  his  tes- 
timony is  not  shown  to  be  material  for  the  defendant.^ 
Nor  an  inadvertent  omission  by  a  witness  to  state  all  he 
knows  material  to  the  case,  on  the  motion  of  a  party 
having  the  privilege  of  cross-examination.^  So  a  new 
trial  will  not  be  granted  for  newly-discovered  evidence, 
that  the  defendant  can  prove,  by  a  witness  who  was  ex- 
amined on  the  trial,  the  payment  of  the  note  sued  on.^ 
Nor  because  a  witness  resident  in  another  State  was  dis- 
covered in  the  county  too  late  to  have  him  examined ; 
unless  it  be  shown  that  his  deposition  could  not  have  been 
taken.^  Nor  upon  an  affidavit,  that  the  affiant  had  sup- 
posed the  subscribing  witness  to  a  deed  to  be  dead,  and 
discovered  the  contrary  only  during  the  trial ;  no  prepara- 
tion having  been  made  to  prove  the  handwriting  of  the 


'  The  State  v.  Carr,  1  Fost.  IGG.  ^  The    State    v.    Blennerhasset, 

2  Lister  v.  Boker,  G  Blackf.  439.  Walker,  7. 

3  Franklin    Bank    v.   Pratt,    31  ?  Houston   v.  Smith,  3   S.  &  M. 
Maine,  501.  597. 

*  The  Commonwealth  i'.  Randall,  *  Wright  v.  Alexander,  11  S.  & 

Thacher's  Crini.  Cas.  500.  M.  411. 

5  Lester  »,  Goode,  2  Murph.  37.  ^  Couwell  v.  Anderson,  3  Cart. 

123. 


en.  XV.]  NEWLY-DISCOVERED    EVIDENCE.  511 

witness.^  ]*^or,  after  a  conviction  for  murder,  upon  the 
prisoner's  affidavit  that  A.  was  a  material  witness  for 
him ;  that  he  was  not  summoned  to  attend  the  trial,  be- 
cause the  prisoner  was  not  then  informed  tliat  he  knew 
anything  relative  to  the  affair ;  and  that  he  (the  prisoner) 
considered  that  the  testimony  of  said  witness  would  have 
an  important  eflect  on  a  subsequent  trial  of  the  cause.^ 

§  27.  But,  where  a  witness,  being  called  to  prove  a  re- 
ceipt a  forgery,  pronounced  it  genuine,  but  failed  to  dis- 
close his  knowledge  of  the  fact  that  it  was  given  for  more 
money  than  was  received,  supposing  that  he  would  not  be 
permitted  to  give  such  evidence;  the  court,  on  affidavit 
to  this  efiect,  granted  a  new  trial,  there  being  no  con- 
flicting testimony,  and  the  plaintiflf  being  an  adminis- 
trator, without  any  personal  knowledge  of  the  matter.^ 
And,  where  witnesses  in  question  lived  near  the  party,  but 
he  did  not  know  their  testimony,  and  this  evidence  was 
to  new  points,  and  there  appeared  to  have  been  no  neglect ; 
a  new  trial  was  granted,  on  payment  of  costs  of  the  first 
suit.^  So,  where,  from  the  form  of  the  indictment,  the 
defendant  has  been  deprived  of  the  testimony  of  a  wit- 
ness, vital  to  his  defence,  and  whose  evidence  the  result  of 
the  trial  proves  him  to  be  justly  and  legally  entitled  to, 
the  court  will  grant  a  new  trial.® 

§  28.  A  new  trial  will  not  be  granted,  because  a  witness, 
who  gave  a  loose  estimate  of  an  amount  at  the  trial,  has 
since  become  satisfied  that  his  estimate  was  large.^  Nor 
on  account  of  newly-discovered  evidence,  which  is  appli- 
cable only  to  the  mitigation  of  damages.^  Nor  in  case  of 
omission  to  assess  mere  nominal  damag-es.^ 


'  Bledsoe  v.  Doe,  4  How.  Miss.  ^  Com.  v.  Manson,  2  Ashm.  31. 

13.  6  Carr  v.  Gale,  1  Curtis,  384. 

^  Bennett's  Case,  8  Leigh,  7-45.  ^  Schlencker  v.  Risley,  3  Scam. 

3  Fitzgibbou  v.  Kinney,  3  Ear-  483  ;  Ham  v.  Taylor,  22  Tex.  225. 

ring.  72.  ^  Jennings  v.  Loring,  5  Ind.  2.';0. 

»  Aiken  v.  Bemis,  3   W.  &  M.  See  Manix  «.  Malony,  7Clarke,  81. 
348. 


512  THE    LAW    OF   NEW    TRIALS.  [CIT.  XV. 

§  29.  It  is  the  general  rule,  that  the  newly-discovered 
evidence  must  not  relate  to  any  matter  of  mere  form. 
Thus,  after  a  conviction  on  an  indictment  for  selling 
spirituous  liquors,  &c.,  "  without  being  duly  licensed  as  an 
inn-holder  or  common  victualler,"  a  new  trial  will  not  be 
granted  for  the  purpose  of  giving  in  evidence  a  license, 
Avhich  the  defendant  had  omitted  to  produce,  to  sell  fer- 
raented  liquor,  and  thus  raise  a  question  as  to  the  mere  form 
of  the  indictment.^  The  court  remarked:  "Where  a  con- 
viction is  manifestly  right,  on  the  facts  and  the  law  appli- 
cable thereto,  it  would  be  a  perversion  of  justice  to  allow 
a  defendant  to  avoid  sentence  by  interj^osing  a  mere  matter 
of  form,  of  which  he  might  have  availed  himself  at  the 
proper  time."^  So  the  court  refused  to  grant  a  new  trial, 
in  a  criminal  case,  on  the  ground  of  the  newly-discovered 
fact  that  the  oflence  was  not  committed  within  the 
county.^ 

§  30.  A  new  trial  was  refused,  for  the  purpose  of  intro- 
ducing new  evidence,  in  an  action  for  slander,  for  charg- 
ing the  plaintiff  with  a  crime,  to  prove  the  truth  of  the 
charge,  "  merely  to  afford  him  an  opportunity  to  prove 
the  plaintiff"  a  felon.  Such  an  indulgence  would  not  have 
been  granted  to  the  people,  if  the  party  so  charged  had 
been  once  tried  and  acquitted."* 

§  31.  In  general,  if  courts  below  refuse  a  new  trial  on 
the  ground  of  newly-discovered  evidence,  such  judgments 
will  not  be  reversed  by  the  court  above,  unless  it  appear 
clearly  from  such  evidence,  taken  in  connection  with  the 
evidence  introduced  at  the  trial,  that  the  right  is  with 
the  appellant.  The  inquirj'  of  the  court  above  will  be, 
whether  the  refusal  has  involved  the  violation  of  a  clear 
legal  right,  or  a  manifest  abuse  of  judicial  discretion.* 

'  Cora.  «.  Cburcliill,  2  Met.  118.  *  Beers  v.  Root,  9  John.  264. 

2  Per  Wilde,  J.,  2  Met.  126.  ^  Abies  v.  Donley,  8  Tex.  331. 

3  Henderson  v.  State,  12  Tex.  See  Blood  v.  Whitman,  3  Cliand. 
525.  54. 


en.  XV.]  NEWLY-DISCOVERED   EVIDENCE.  513 

The  application  is  usuajly  confined  to  the  sound  discretion 
of  the  court  below,  and  the  decision  cannot  be  reviewed, 
unless  made  upon  principles  of  law,  or  upon  facts  brought 
up  in  the  record.^ 

§  32.  With  reference  to  a  motion  of  this  nature  made 
in  the  appellate  court,  it  has  been  held,  in  Vermont,  that, 
where  a  judgment  was  rendered  in  favor  of  the  defendant, 
on  a  demurrer  to  a  plea  of  the  statute  of  limitations,  and 
such  judgment  was  affirmed,  on  exceptions,  by  the  Su- 
preme Court ;  it  was  no  ground  for  a  new  trial,  that  the 
defendant,  after  the  rendition  of  the  final  judgment, 
promised  to  pay  a  part,  or  all,  of  the  plaintiff's  demand. - 
So  the  Supreme  Court  will  not  sustain  a  petition  for  a  new 
trial,  founded  on  the  disclosure  of  facts,  which  should 
have  been  presented  to  the  county  court  as  a  reason  for 
rejecting  the  report  of  referees.^  So,  where  a  case  comes 
to  the  Supreme  Court  on  exceptions  to  the  decision  of  the 
county  court,  on  questions  of  law;  the  Supreme  Court 
will  not  entertain  a  motion  for  a  new  trial,  on  the  ground 
of  newly-discovered  evidence.^ 

§  83.  In  the  same  State,  a  petition  to  the  Supreme  Court 
for  a  new  trial,  for  the  discovery  of  new  evidence,  must, 
under  the  statute,  be  preferred,  and  the  citation  be  served 
on  the  adverse  party,  within  two  years  from  final  judg- 
ment in  the  county  court;  and,  though  the  case  may  have 
passed  to  the  Supreme  Court  on  exceptions,  and  the  cita- 
tions be  served  within  two  years  from  the  time  the  judg- 
ment was  affirmed  in  that  court,  it  is  not  sufficient,  if  it 
exceed  two  years  from  the  time  of  judgment  in  the  county 
court.  And  the  right  of  the  petitioner  to  insist  upon  the 
dismissal  of  the  petition  for  such  defect  is  not  waived, 


'  Warren  v.  The  State,  1   Iowa,  3  Fuller  v.  Wrii^ht,  10  Verm.  512. 

lOG.  ^  Minkler  v.  Miukler,  1-4  Verm. 

2  Ferris  v.  Barlow,  10  Verm.  133.  558. 

33 


514  TUE    LAW    OF   NEW    TRIALS.  [CIL  XV. 

though  his  motion  he  not  filed  at  the  term  when  the  peti- 
tion is  entered.^ 


§  34.  Where  in  a  criminal  case  the  judge  a  quo  refuses 
an  application  for  a  new  trial,  hased  on  the  ground  of 
newly-discovered  testimony  and  the  failure  of  the  sherilf 
to  summon  witnesses,  stating  that  he  dishelieves  the  affi- 
davit of  the  accused ;  the  refusal  cannot  on  appeal  be 
assigned  as  error.- 

§  35.  With  reference  to  the  form  of  application,  and 
the  nature  of  the  evidence,  requisite  for  obtaining  a  new 
trial  on  the  ground  of  newly-discovered  evidence;  the 
usual  practice  requires,  that  the  party  file  his  own  affi- 
davit, stating  that  he  has  since  the  trial,  and  without 
previous  neglect,  discovered  material  testimony  going  to 
the  merits  of  the  case,  and  giving  the  names  of  the  wit- 
nesses ;  and  also  the  affidavit  of  the  witnesses,  setting 
forth  the  facts  they  will  swear  to  on  the  trial ;  unless  it 
be  shown  that  the  latter  cannot  be  obtained.^  It  is  not 
sufficient  for  the  applicant  to  state  that  he  did  not  know 
of  the  testimony  in  time  to  produce  it  for  the  trial ;  it 
must  appear  that  he  could  not  have  ascertained  it  by 
reasonable  diligence.^  Thus,  in  an  indictment  for  larceny, 
the  mere  affidavit  of  a  third  person,  that  the  prosecutor 
had  declared  that  there  was  in  existence  a  bill  of  sale  of  the 
property,  tending  to  establish  title  in  the  prisoner,  is  not 
sufficient  ground  for  a  new  trial,  without  the  affidavit  of 
the  prisoner,  alleging  sufficient  reason  why  the  bill  of  sale 


'  Mower  v.  Warner,  IG   Verm.  465 ;  Silkmau  v.  Boif];er,  4  E.  D. 

495.  Smith,  2;)G  ;  Giles  v.  The  State,  G 

2  State  V.  Rollaml,  14  La.  An.  Geo.  270  ;  Warren  v.  The  State,  1 
40.  Iowa  (Greene),  JOG;  Rulou  v.  Lin- 

3  Blood  V.  Whitman,  3  Chand.  tol,  2  IIow.  Miss.  891. 

54 ;  Kane  v.  Burrus,  2  Sm.  &  M.        »  Pleasant  v.  The  State,  8  Eng. 

313.     See  Reed  t.  Staton,  3  Ilavw.  3G0;  Cozart  «.  Lisle,  1  Meigs,  65  ; 

159;  Slone  t.  Slone,  2   Met.  \ly.  Madden  v.  Shapard,   3   Tex.  49; 

339  ;  McDauiel  «.  Grimes,  12  Ind.  Suggs  «.  Anderson,  12  Geo.  461. 


CH.  XV.]  NEWLY-DISCOVERED    EVIDENCE.  515 

was  not  produced  on  the  trial,  and  an  expectation  that  it 
would  be  procured  at  a  subsequent  trial.' 

§  36.  When  a  new  trial  is  asked  for  on  the  ground  of 
newly-discovered  evidence,  the  bill  of  exceptions,  motion, 
or  other  application,  must  set  forth  the  testimony  which 
was  submitted  to  the  jury,  so  as  to  enable  the  court  to 
judge  whether  the  result  would  be  altered  by  the  admis- 
sion of  such  new  testimony.^  The  party  must  also  state 
fully,  what  the  newly-discovered  evidence  is,  by  whom  it 
was  discovered,  the  probability  of  procuring  it  in  time, 
and  what  diligence  he  has  used  in  the  preparation  of  his 
case,  that  the  court  may  be  enabled  to  form  their  own 
opinion  on  the  foct.^  And  the  truth  of  the  application 
must  be  fully  established.^ 

§  37.  As  already  suggested,  the  rule  is  well  settled,  that 
the  affidavit  of  the  witness  as  well  as  the  party  will  be 
required.^  If  it  can  possibly  be  procured.^  Or  else  a 
satisfactory  reason  for  its  non-production  must  be  given.^ 
And  the  uewly-discovered  evidence,  if  written,  ought  to 
be  produced.^  On  the  other  hand,  the  affidavits  of  the 
attorney  and  the  witness  are  held  insufficient  without  that 
of  the  party.''(a) 

'  F;iiar«.TlieState,3How.  Miss.  194;  Caldwell  «.  Dickson,  29  Mis. 

422.  227  ;  Deuu  v.  Morrcll,  1  Hall.  383 ; 

2  Turnley  v.  Evans,  3  Humph.  Shephard  v.  Shepliard,  5  Halst. 
222 ;  Simpson  v.  Wilson,  6  Ind.  250  ;  Myers  v.  Brownell,  2  Aik. 
474.  407 ;  Scranton  v.  Tilley,  IG   Tex. 

3  Bourland  «.  Skinner,  6   Eng.  183. 

G71  ;  Gilberts.  Woodbury,  9  Sliep.  ^  Manix  v.  Malony.  7 Clarke,  81. 

246;  Perry  v.  Cochran,  1  Cal.  180;  See  Humphries  ».  Marshall,  12  Ind. 

Madden  v.  Shapard,  3  Tex.  49.  See  609. 

Millaudon  v.  First  Municipality,  1  ^  Suggs   v.   Anderson,    12   Geo. 

La.  Ann.  214.  461 ;  Welsh  v.  State,  11  Tex.  3G8. 

4  Hinds  V.  Terry,  Walker,  80  ;  8  Edrington  v.  Kiger,  4  Tex.  89. 
Harbour  v.  Rayburn,  7  Yerg.  432  ;  ^  State  v.  McLaughlin,  27  Mis. 
Mclntire  v.  Young,  G  Blackf.  496.  Ill  ;  Glascock  v.  Manor,  4  Tex.  7. 

5  Jenny,  etc.  v.  B'ower,  11  Cal. 

(«)  Where  two  of  the  defendant's  witnesses,  being  present  when  the 
trial  coninienccd,  disappeared  without  leave  or  notice,  and  the  party,  in 


516  THE    LAW    OF   NEW    TRIALS.  [CH.  XV. 

§  38.  AVith  reference  to  the  form  of  the  party's  affidavit ; 
it  is  held  that  the  names  of  the  new  witnesses  must  be 
o-iven.^  That  the  new  evidence  must  be  shown  to  be  im- 
portant, and  must,  therefore,  be  disclosed.^  It  must  also 
appear  by  the  affidavit,  that  tlie  new  evidence  is  not  de- 
signed to  explain  or  contradict  former  testimony .^  The 
affidavit  must  allege  discovery  of  the  evidence,  and  what 
it  will  iJrove.-*  And  must  show  that  there  has  been  no 
laches.^ 

§  39.  It  is  said,  "Facts  newly  discovered  ought  to  be 
laid  before  the  court  in  the  shape  of  legal  evidence,  and 
not  hearsay.  Many  men  say  things  which  they  dare  not 
contirm  under  oath."''  Thus  a  new  trial  will  not  be 
granted,  upon  affidavit  of  the  party's  agent,  that  since  the 
trial  he  had  been  informed  by  a  person  of  certain  facts, 
supposed  to  be  material,  in  regard  to  which  the  agent  had 
sought  for  information  before  the  trial;  and  that  the 
agent  had  also  learned,  since  the  trial,  that  certain  persons 
named  were   present  at  the  occurrence  which  was  the 

'  Eichardson  v.  Backus,  1  John.  ■»  Sarah  v.  State,  28  Geo.  570. 

r)d.  ^  Mayos  v.  Deaver,  1  Clarke,  216. 

2  McCombs  V.  Chandler,  5  Har-  ^  Per  Ford,  J.,  Shephard  «.  Shep- 

ring.  423.  hard,  5  Ilalst.  250. 

3'^  Smith  V.  Woodfinc,  1  C.  B.  (N. 
S.)  660. 


support  of  a  motion  for  a  new  trial,  filed,  the  next  day,  his  own  affidavit, 
and  that  of  another,  of  the  fact;  held,  his  affidavit  ought  to  have  been 
accompanied  by  the  affidavit  of  the  witnesses,  showing  the  facts  to  which 
they  would  testify;  and  it  ought  to  have  stated  that  the  defendant 
could  not  prove  the  same  facts  by  other  testimony;  and,  if  the  affidavits 
of  the  absent  witnesses  could  not  be  procured,  that  fact  should  be 
stated.  Cotton  v.  State,  4  Tex.  260.  The  ground  of  a  motion  for  a 
new  trial,  on  account  of  newly-discovered  evidence,  is  not  sufficiently 
verified  by  an  affidavit  of  the  defendant,  that  he  has  been  told  by  A., 
that  A.  had  been  told  by  B.,  that  B.  had  heard  a  saying  of  C,  which 
saying  constitutes  the  newly-discovered  evidence.  White  v.  Wallen,  17 
Geo.  106. 


on.  XV.]  NEWLY-DISCOVERED    EVIDENCE.  517 

foundation  of  tlio  suit,  but  had  not  seen  those  persons  to 
ascertain  what  they  would  tcstify.'(rt) 

•  Wheeler  v.  Troy,  20  N.  II.  77. 

(a)  The  allegation  of  newly-discovered  evidence  must  be  supported 
by  affidavit.  Leonard  v.  Schuler,  34  Mis.  475.  The  affidavit  of  the 
witness  that  he  had  not  communicated  the  facts  to  the  party  till  after  the 
trial,  and  his  own  affidavit,  that  the  facts  were  unknown  to  him  until 
after  the  jury  retired.  Bronson  v.  Green,  2  Duv.  234;  35  Yerm.  452. 
The  affidavit  must  show  diligence,  to  discover  the  testimony,  &c.,  before 
the  trial,  the  facts  that  can  be  proved,  and  the  names  of  the  witnesses. 
Snider  v.  Myers,  3  W.  Va.  195.  It  is  not  sufficient  for  the  party  to  state 
in  his  affidavit  what,  as  he  has  learned,  certain  persons  will  testify.  Un- 
less some  satisfactory  reason  to  the  contrary  is  given,  he  must  produce 
their  affidavits  as  to  what  they  will  testify.  Arnold  v.  Skaggs,  35  Cal. 
684  ;  18  Wis.  295.  Upon  a  motion,  under  ?  3G40  of  the  (Ga.)  Code,  the 
applicant  did  not  state  the  residence  of  the  witness  on  whom  he  relied 
and  whose  affidavit  he  produced,  nor  that  he  expected,  or  had  reason 
to  expect,  the  benefit  of  the  witness's  testimony  at  a  future  trial,  or  that 
the  witness  was  within  reach  of  process  of  the  court.  Held,  no  ground 
for  refusing  the  motion.  Mann  v.  State,  34  Geo.  1.  A  petition  for  a  new 
trial  in  respect  to  the  specific  sum  decreed  to  the  petitioner  instead  of 
alimony,  on  the  ground  of  the  discovery  of  new  evidence,  must  state 
under  oath  the  names  of  the  witnesses  and  what  each  is  expected  to  tes- 
tify, and  allege  that  the  parties  have  not  cohabited  since  the  trial,  and 
that  neither  of  them  has  contracted  a  new  marriage.  Merrill  v.  Shat- 
tuck,  55  Maine,  374.  Where  the  affidavit  for  a  new  trial  stated,  that 
the  newly-discovered  witness  was  absent  from  the  State  in  which  both  he 
and  the  party  resided,  and  that  the  latter  was  unable  to  find  him  or  pro- 
cure his  affidavit,  and  also  stated  important  facts  to  which  the  witness 
was  expected  to  testify ;  held,  it  was  not  an  abuse  of  discretion  to  grant 
a  new  trial.  Smith  v.  Gushing,  18  Wis.  295.  In  the  absence  of  a  state- 
ment of  facts,  the  reviewing  court  will  not  consider  the  judgment  of  the 
court  below,  overruling  a  motion  for  a  new  trial  on  the  ground  of  newlj-- 
discovered  evidence.  Thompson  v.  Callisou,  27  Tex.  438.  In  Indiana, 
a  complaint  for  a  new  trial  on  the  ground  of  newly-discovered  evidence 
must  set  out  the  evidence  given  on  the  former  trial.  Freeman  i\  Bow- 
man, 25  Ind.  236.  The  application,  when  made  after  judgment,  and  at 
a  subsequent  term  of  the  court,  must  set  out  the  evidence  given  at  the 
trial,  together  with  the  newly-discovered  evidence.  Huntington  v.  Drake, 
24  Ind.  347.  The  Supreme  Court  will  not  grant  a  new  trial,  where  the 
evidence  given  on  the  trial  is  not  in  the  record,  as  it  cannot  know  how 


518  THE   LAW    OF    NEW    TRIALS.  [CH.  XV. 

§  40.  It  is  regarded  as  essential  to  tlie  success  of  a  mo- 
tion for  new  trial  upon  this  ground,  that  the  testimony 
will,  in  the  opinion  of  the  court,  substantially  change  the 
verdict.^  More  especially  if  the  motion  is  uncorroborated 
by  the  affidavit  of  any  disinterested  person.^  Or,  as  it  is 
sometimes  expressed,  the  new  evidence  must  be  material, 
and  of  a  decisive  character,  and  such  as  to  induce  belief 
that  injustice  has  been  done.^ 

1  Kiby  V.  Watcrford,  14  Vt.  414;  Tidwell,  10  Geo.  33 ;  Snowman  v. 

IC   Geo.    83 ;  Glover  v.  Woolsey,  Wardwell,  33  Maine,  27o. 

Dudley    (Geo.),   85;    Middletown  2  Bixby  ^i.  State,  15  Ark.  395. 

1).  Adams,  13  Verm.  285;  Willard  "  Mcehanics',  &c.  v.  Nichols,  1 

V.  Sino;er,  2  Greene,  144;  Barrett  Harr.  410;  Avery  ?;.  State,  26  Geo. 

«.  Belshee,  4  Bibb,  848  ;  Carlisle  v.  233  ;  State  v.  Burge,  7  Clarke,  255. 


far  the  new  evidence  is  merely  cumulative.  Cowden  v.  Wade,  23  Ind. 
471.  A  party  must  set  forth  in  his  bill  of  exceptions  the  testimony  which 
was  submitted  below,  so  as  to  enable  the  court  to  determine  whether  the 
result  would  be  changed  by  the  new  testimony,  or  whether  the  testimony 
would  be  merely  cumulative.  Ruddick  v.  Ruddick,  21  Ind.  163.  Where 
an  application  fur  a  new  trial  is  made  after  the  term,  there  must  be 
brought  to  the  knowledge  of  the  court,  by  affidavits  or  otherwise,  the 
issues  in  the  cause,  the  evidence  adduced  upon  a  former  trial,  and  the 
newly-discovered  evidence.  The  application  must  be  made  by  a  com- 
plaint, which  should  show,  on  its  face,  a  cause  for  a  new  trial.  Pattison 
V.  Wilson,  22  Ind.  358.  The  rule,  that,  where  a  new  trial  is  a]>plied  for 
after  the  term,  the  evidence  given  on  the  trial  must  be  substantially  set 
forth,  does  iu>t  apply  necessarily,  where  the  new  trial  is  applied  for  on 
other  grounds.  House  v.  AVright,  22  Ind.  383.  In  Texas,  newly-dis- 
covered evidence  should  be  set  out  verbatim,  just  as  it  can  be  testified 
to  in  court,  and  be  subscribed  and  sworn  to  by  each  of  the  newly-dis- 
covered witnesses,  or,  at  least,  a  satisfactory  excuse  should  be  shown  for 
the  omission  or  absence  of  the  affidavit.  Burnley  v.  Rice,  21  Tex.  171. 
In  Vermont,  a  petition  need  not  be  accompanied  by  the  certificate  of  the 
presiding  judge,  to  a  statement  of  the  former  trial,  or  by  the  evidence 
given  at  such  trial.  I'he  petition  must  set  forth  the  history  of  the  former 
trial  fully  enough  to  show  the  applicability  and  effect  of  the  ucwly-dis- 
covered  evidence,  and  a  statement  of  that  evidence,  to  which  must  be 
attached  the  affidavit  of  the  party  that  the  evidence  is  newly  discovered, 
and  also  the  affidavits  of  the  witnesses  of  what  they  will  testify.  Bradish 
V.  State,  3.0  Verm.  4.o2.  If  there  is  a  doubt  as  to  the  evidence  being 
newly  discovered,  the  court  should  allow  the  rule  nisi,  so  as  to  give  time 
for  an  additional  afiidavit.     Sharnuin  v.  Morton,  31  Geo.  34. 


en.  XV.]  NEWLY-DISCOVERED   EVIDENCE.  519 

§  40a.  A  new  trial  will  not  be  granted,  unless  the  new 
evidence  will  do  some  good.^  (See  chap.  3.)  The  question 
is  not,  "whether  a  jury  might  bo  induced  to  give  a 
dift'erent  verdict;  but  whether  the  legitimate  effect  of 
such  evidence  would  be  to  require  a  different  verdict."^ 
It  is  not  enough  that  a  party  has  discovered  evidence 
which  would  strengthen  his  case,  if  such  evidence  cither 
could  not  or  ought  not  to  induce  the  jury  to  find  a  different 
result.^  Thus,  upon  an  indictment  for  obtaining  property 
by  false  pretences,  it  is  no  ground  for  a  new  trial,  that  the 
defendant  expects  to  prove  by  newly-discovered  evidence 
what  he  had  done  with  the  property  or  its  proceeds,  which 
he  had  not  done  at  the  former  trial.'  So,  upon  a  convic- 
tion for  manslaughter,  a  new  trial  cannot  be  granted  on 
account  of  newly-discovered  evidence,  to  the  effect  that 
the  deceased  bought  a  pistol,  declaring  it  to  be  for  the 
purpose  of  killing  the  prisoner.  This  being  some  weeks 
before  the  killing,  and  there  being  no  evidence  of  notice 
to  the  prisoner  of  the  threats,  it  cannot  be  presumed  that 
he  acted  under  their  influence  in  slaying  the  deceased.^ 

§  41.  Partly  for  the  reason,  that  the  result  of  another 
trial  may  or  ought  to  be  different  from  that  of  the  former 
one,  it  must  also  be  shown,  that  the  new  evidence  comes 
from  a  source  entitled  to  credit."  It  will  be  insufficient, 
if  shown  to  be  unworthy  of  credit  by  facts  proved  there- 
in.^ And,  on  a  motion  for  a  new  trial  on  this  ground, 
evidence  of  the  credibility  of  the  witness  is  admissible.^ 
Thus  the  defendant  claimed  the  horse,  which  was  the 
subject  of  an  action  of  trover,  by  a  sale  from  the  plaintiff' 
through  his  agent.     The  only  important  inquiry  on  the 

'  Simpkina  v.  Wilson,  11   Ind.  ^  Macy  v.  DeWolf,  3  W.  &  M. 

541.  193. 

2  Lessee,  &c.  v.  Park,  4  Ham.  5.  '  Jernigan  v.  Waiuor,    13   Tex. 

3  Fleet  V.  Hollenkam,  13  B.  Mon.  180. 

219.  8  Parker  v.  Hardy,  24  Pick.  246  ; 

t  Com.    V.    Benisli,     Thaclier's  Pomcroy    v.    Colnmbiau,    &c.,    2 

Crim.  Cas.  084.  Gainos,2G0;  Williams  v.  Baldwin, 

5  Carr  v.  The  State,  14  Geo.  358.  18  John.  4S9. 


520  THE    LAW    OF   NEW    TRIALS.  [CE.  XV. 

trial  was,  whether  the  alleged  agent  had  any  authority. 
After  a  verdict  for  the  plaintiff,  the  defendant  moved  for 
a  new  trial,  founding  his  motion  upon  the  deposition  of 
one  Mallon,  who  testified  that  the  plaintiff  told  him  that 
he  had  authorized  Smart  (the  agent)  to  sell  the  horse. 
At  the  hearing  on  the  motion,  the  plaintiff  offered  depo- 
sitions to  prove  that  Mallon's  reputation  for  veracity  was 
bad.  It  was  held  that  such  depositions  w^ere  admissible, 
although  such  a  practice  was  novel  in  Massachusetts,  and, 
as  they  established  the  point  sought  to  be  proved,  the 
motion  for  a  new  trial  w\as  overruled.  Morton,  J.,  says: 
"We  are  not  bound  to  grant  a  new^  trial,  merely  because 
an  individual  will  swear  to  some  new  fact.  We  must 
judge  of  the  importance  of  the  fact,  and  whether,  in  con- 
nection with  the  evidence  already  introduced,  it  will  be 
likely  to  affect  the  final  result.  And  why  should  we  not 
also  inquire  into  the  credibility  of  the  new  witness?  The 
additional  labor  should  be  no  objection,  if  it  tend  to  pro- 
mote justice.  Neither  the  party  nor  the  witness  can 
reasonably  complain  of  a  collateral  attack  on  the  wit- 
ness's character,  which  they  are  not  prepared  to  repel. 
Both  are  in  the  same  situation  as  if  it  were  a  trial  on  the 
merits,  and  have  equal  opportunity  and  are  equally  bound 
to  be  prepared  to  encounter  any  competent  evidence."^  So 
the  incompetency  of  the  evidence  is  a  fatal  objection  to 
the  motion.^ 

§  42.  It  is  no  ground  of  new  trial,  that  a  person  told 
the  defendant's  attorney  of  a  certain  fact ;  more  especially 
in  a  case  where  such  person  would  not  bo  obliged  to  tes- 
tify to  the  fact,  because  he  would  thereby  criminate  him- 
self. As,  in  a  case  of  seduction,  declarations  of  having 
had  criminal  intercourse  with  the  plaintiffs  daughter, 
who  testified  against  the  defendant.^ 

'  Parker    w.    Hardy,    24     Pick.        ^  Shumway  v.  Fowler,   4  John. 
24G-9.  425. 

-  Ilolman  v.  The  State,  8  Eng. 
lO.j. 


CH.  XVI.] 


SURPRISE. 


521 


CHAPTER  XVI. 


SURPRISE. 


1.  General  rule. 

2S. 

Absence,  &c.,  of  witness. 

2.  In  criminal  cases. 

35. 

Testimony  given  or  omitted. 

4.  Second  motion  for  new  trial. 

44. 

Want  of  preparation. 

5.  Discretion — court  above. 

45. 

Rejection    or    admission    of 

5a.  For  cause  arising  after  ver- 

evidence. 

dict. 

40. 

Credibility  of  witness. 

6.  Justice  done. 

48. 

Misconduct  of,  or  tampering 

7.  Laches. 

with, 

witness. 

8.  Terms. 

49. 

Papers. 

9.  Concurrent       with        other 

50. 

Pleadings. 

grounds. 

51. 

Perj  ury. 

10.  Threats,   &c.,   preventing  a 

53, 

59.  "Nonsuit. 

defence. 

53. 

Absence,  &c.,  of  counsel. 

11.  Mistake  of  law. 

60. 

Delay,  withdrawing  juror. 

13.  Ignorance  of  fact. 

61. 

Defliult. 

14.  Sickness. 

62. 

Waiver. 

15.  Absence  of  party. 

66. 

Depositions,  &c. 

16.  Erroneous  notice  for  trial. 

68. 

Affidavits. 

24.  Premature  trial. 

73. 

Delay  in  motion. 

§  1.  Another  ground  of  new  trial  is  surprise.  The 
general  rule  is  laid  down,  that,  when  a  party  or  his  counsel 
is  taken  by  surprise,  on  a  material  point  or  circumstance 
which  could  not  have  been  anticipated,  and  when  want 
of  skill,  care,  or  attention  cannot  be  justly  imputed,  and 
injustice  has  been  done,  a  new  trial  should  be  granted. 
But  this  rests  in  the  sound  discretion  of  the  court.^(rt) 


'  Dorr  V.  Watson,  28  Miss.  383.  Com.  B.  N.  S.  659 ;  Cooper  v. 
But  see  Cummins  v.  Walden,  4  Lloyd,  6  Com.  B.,  J.  Scott,  N.  S. 
Blackf.  307;  Smith  v.  Woodfine,  1     518. 

(a)  Where  there  is  no  surprise,  and  no  miscarriage  oa  the  part  of 
judge  or  jury,  the  special  circumstances  on  which  a  court  will  grant  a 
new  trial  must  be  very  strong.  Lewis  v.  Trussler,  25  Eng.  L.  and  Eq. 
422.  Mere  surprise  at  the  result  of  a  trial  is  no  ground  of  a  new  trial. 
Lane  v.  Brown,  22  Ind.  239.  It  is  necessary  to  show  surprise,  in  a  matter 


OSJ. 


THE   LAW    OF   NEW    TRIALS.  [CH.  XVI. 


And  they  will  not  relieve  a  party  from  the  consequences 
of  mere  ignorance,  inadvertence,  or  neglect.^ 

§  2.  Surprise  may  be  good  ground  for  a  new  trial  in 
criminal,  as  in  civil  cases.-(«) 

§  3.  If  a  prisoner,  without  fault,  has  failed  of  a  full  and 
im[)artial  trial,  a  new  one  may  be  had  though  there  was 
no  error  of  law.  Thus  a  new  trial  was  granted,  where 
the  defendant  had  applied  for  and  had  good  ground  to 
expect  a  change  of  venue,  which  was  not  granted ;  one 
material  witness  would  not  attend,  and  rather  than  wait 
for  compulsory  process  the  State  admitted  what  it  was 
understood  he  would  testify  to ;  the  prisoner's  principal 
counsel  left  him  at  the  last  moment,  and  the  new  one 
appointed  by  the  court  had  no  time  to  prepare  the  case, 
the  prisoner  being  so  sick  as  to  be  mentally  incapable  of 
aftbrding  him  the  needed  information  ;  and  the  witness, 
on  whose  evidence  the  whole  defence  rested,  turned  against 

'  Rolfe  V.  Rolfe,  10  Geo.  143.  ^  Regina  v.  Whiteliouse,  18  Eng. 

Law  and  Eq.  105. 


material  to  the  issue,  and  that  it  produced  injury ;  that  it  was  not  the 
consequence  of  neglect  or  inattention  on  the  part  of  the  party  surprised, 
and  that  he  used  all  reasonable  efforts  to  overcome  the  evidence  which 
worked  the  surprise,  or  that  it  was  not  within  his  power  to  do  so  by  the 
employment  of  reasonable  diligence.  Chicago  v.  Vosburgh,  45  111.  311. 
In  a  late  case— Gray  v.  Singerley,  Leg.  Intell.— Hare,  P.  J.,  says:  "The 
application  for  a  new  trial  will  be  found,  on  examination,  to  rest  on  the 
single  ground  that  the  defendant  would  be  able  to  present  his  case  in  u, 
more  satisfactory  manner  if  the  cause  wore  tried  again.  I  need  hardly 
say  that  this  reason  is  not  sufQcient  under  any  principle  which  prevails 
with  regard  to  new  trials.  The  rule  that  a  party  must  come  prepared 
before  the  jury,  and  cannot  claim  another  hearing  to  remedy  any  defi- 
ciency that  might  have  been  avoided,  may  work  hardly  in  particular  in- 
stances, but  in  the  long  run  is  of  inestimable  value  in  preventing  the 
delay  that  may  be  nearly  equivalent  to  a  denial  of  justice." 

[a)  A  motion  will  be  denied,  when  the  affidavit  does  not  show  that  the 
testimony  of  the  witness  objected  to  was  not  true,  or  that  it  could  be 
obviated  by  other  evidence.     People  v.  Jocelyn,  29  Cal.  4G2. 


en.  XVI.]  SURPRISE.  523 

him  at  the  trial.*  But  it  is  held  that  a  new  trial  in  a 
criminal  case  ought  not  to  be  granted  on  the  ground  of 
surprise,  upon  the  unsupported  affidavit  of  the  prisoner.^ 

§  4.  "Where  a  verdict  has  been  set  aside  for  surprise,  and 
a  new  trial  is  had  on  the  merits,  and  a  verdict  found  the 
other  way  ;  a  new  trial  will  not  be  granted  except  for  the 
most  controlling  reasons.^ 

§  5.  Motions  for  new  trial,  on  the  ground  of  surprise, 
are  addressed  to  the  sound  discretion  of  the  court,  and  the 
j  udgment  of  the  court  below  is  not  to  be  overruled,  unless 
clearly  wroug.''(«) 

§  ba.  Surprise,  arising  after  verdict,  is  not  ground  for  a 
a  new  trial.^ 


1  TniloclvB.  State,!  Clark  (Iowa),  '  Mason  v.  Bascom,  3  B.  Mon. 

515.  269. 

^  Jordan  v.  The  State,  10  Tex.  *  Coker  v.  State,  20  Ark.  53. 

479.  5  People  v.  Mack,  2  Parker,  673. 


(a)  In  North  Carolina,  new  trials  for  surprise  can  only  be  granted  by 
the  superior  courts,  and  the  refusal  to  grant  one  cannot  be  examined  on 
appeal.  Liudsey  v.  Lee,  1  Dev.  464.  A  motion  for  a  new  trial  on  the 
ground  of  surprise,  which  consisted  in  a  mere  misapprehension  of  the  law 
in  regard  to  the  burden  of  proof,  is  for  the  sound  discretion  of  the  court, 
and  its  action  is  not  the  subject  of  review.  Ferguson  v.  Gilbert,  16  Ohio 
St.  88.  The  Supreme  Court  will  not  interfere  unless  there  was  clear 
abuse  of  discretion.  Nooney  v.  Mahoney,  30  Cal.  226.  An  order,  denying 
a  new  trial  for  refusal  of  a  continuance  on  account  of  absence  of  witnesses, 
will  not  be  reversed,  where  a  counter  affidavit  was  filed,  to  show  that  the 
application  for  a  continuance  was  not  made  in  good  faith,  and  where,  on 
the  motion  for  a  new  trial,  the  affidavits  of  the  absent  witnesses  were  not 
produced,  to  show  that  they  could  testify  to  the  facts  desired  to  be  proved 
by  them.  People  v.  De  Laccy,  28  Cal.  580;  People  v.  Jocelyn.  29  Cal. 
562.  Motions  for  a  new  trial  on  the  ground  of  surprise  arc  addressed  to 
the  sound  discretion  of  the  court ;  but,  when  surprise  is  clearly  shown, 
resulting  from  no  fault  of  the  appellant,  and  he  has  been  injured  thereby, 
the  Supreme  Court  will  reverse  the  judgment.    Todd  v.  State,  25  Ind.  212. 


524  THE    LAW    OF   NEW    TRIALS.  [CIL  XVI. 

§  6.  As  in  other  cases,  where  justice  is  done,  a  new  trial 
will  not  be  granted  for  surprise.^  (See  chap.  3.)  Or  if  the 
evidence  justified  the  verdict,  and  there  have  been  no 
apparent  errors  of  law  or  tact  tending  to  the  defendant's 
})rojudice.^  Thus  a  defendant  must  not  only  show  a  sur- 
prise which  ordinary  prudence  could  have  guarded  against, 
but  a  valid  defence  to  some  material  part  of  the  cause  of 
action."  The  party  must  show  injury,  and  also  what 
evidence  would  be  proper  upon  a  new  trial.'* 

§  7.  A  new  trial  will  not  be  granted  on  this  ground  in 
equity,  where  the  party  has  neglected  to  make  a  season- 
able application  at  law.' 

§  8.  "With  regard  to  the  terms  of  granting  a  new  trial 
for  this  cause ;  it  has  been  sometimes  held,  that,  where 
the  defence  does  not  go  to  the  merits,  the  money  must 
be  brouo;ht  into  court.^ 

§  9.  Surprise,  misdirection,  and  newly-discovered  evi- 
dence are  sometimes  concurrent  grounds  for  granting  a 
new  trial.  As  in  an  action  upon  a  policy  of  insurance,  to 
which  the  defence  was  set  up,  that  the  premises  were 
wilfully  burned  by  the  plaintifl'.  The  judge  instructed 
the  jury,  that  the  same  evidence  was  requisite  as  upon  an 
indictment  of  the  plaintifl*.  And  it  further  appeared  that 
the  claim  had  been  supported  by  gross  fraud,  the  circum- 
stances of  which  were  discovered  after  the  trial."(«) 

'  Wits  V.  Polchampton,  2  Salk.  <  Blake  v.  llowc.  1  Aik.  806. 

G47;    Robbins  v.   Alton,   &c.,    12  '^  Bateman  v.  AVilloe,  1   Sch.  & 

Mis.  380.     See  chap.  3.  Let'.  201. 

2  Orthing  v.  Guiidersheimer,  12  ^  D.  Agnilarc.  Tobin,  2Mar.  265. 
Fla.  640.    '  '  Thurtell  v.  Beaumont,  1  Bing. 

3  Cook  v.  De  La  Gucrra,  24  Cal.  339. 
237. 

(a)  AVherc  the  plaintiff  was  unable  to  furnish  certain  evidence  on  the 
trial  which  he  subsequently  discovered  or  deemed  to  be  material ;  held, 
not  a  legal  surprise.    The  surprise  must  consist  of  something  which  takes 


en.  XVI.]  SURPRISE.  '  5-') 

§  10.  A  now  trial  wiis  refused,  wlieii  moved  for  upon 
the  ground  that  the  plaintiff,  in  an  action  for  crim.  con., 
had  by  his  violent  conduct  to  the  defendant  prevented 
him  from  making  defence.  It  was  alleged  that  the  }»lain- 
tifl"  followed  the  defendant  to  France,  thence  back  to 
England,  and  thence  to  Brussels  ;  that  he  instituted  a 
criminal  prosecution  against  him,  upon  which  he  was 
imprisoned  for  six  months ;  and  repeatedly  challenged 
him.  The  motion  was  overruled,  in  consideration  of  the 
aggravated  nature  of  the  case,  and  because  the  defendant, 
though  imprisoned,  had  ample  time  to  consult  with  his 
attorney.^ 

§  11.  A  new  trial  will  not  be  granted  on  the  ground  of 
surprise,  when  owing  to  a  misapprehension  of  the  law 
applicable  to  the  case.^  Or  a  mistake  of  the  party  as  to 
the  nature  of  his  case.^  ISTor  upon  petition,  because  the 
court  below  ruled  the  law  diflerently  from  what  the  party 

'  Masters  v.  Barnwell,  7  Bing.  536 ;  Ilite  v.  Lenhart,  7  Mis.  23 ; 
324,  u.  Law  v.  Law,  3  Giatt.  36G. 

2  Philips    V.  Wheeler,   10   Tex.        ^  Robbius  v.  Alton,  &c.,  13  Mis. 

380.     • 

place  at  the  trial.  Oakley  v.  Sears,  7  Rob.  111.  A  party  is  not  entitled 
to  a  new  trial  under  (Iowa)  Rev.  1860,  §§  3112,  3116,  unless  he  shows 
that  he  was  surprised,  prejudiced  by  the  judgment,  and  that  he  has 
material  evidence  which  he  could  not,  with  the  exercise  of  reasonable 
diligence,  have  discovered  before  the  term  at  which  the  judgment  was 
rendered,  and  that  such  evidence  has  been  discovered  since.  Richards  v. 
Nuckolls,  19  Iowa,  5.55.  AVhere,  in  a  suit  on  a  note,  the  defendant  testified 
to  payment,  with  time,  place,  and  circumstances,  and  the  plaintiff  was 
never  apprised  of  these  particulars,  and  had  uo  time,  after  the  evidence 
was  given,  to  inspect  his  books,  or  hunt  up  evidence  to  meet  the  facts 
testified  to,  and  only  introduced  evidence  to  deny  payment  generally;  and 
has  found  three  witnesses  since  the  trial,  whose  recollections  have  been 
refreshed  by  an  examination  of  the  books,  and  who  can  testify  as  to  what 
did  take  place  at  the  time  and  place  of  the  alleged  payment,  in  disproval 
of  the  defendant's  testimony  :  the  plaintiff"  is  entitled  to  a  new  trial  on  the 
ground  of  surprise,  and  newly-discovered  evidence.  Parshall  v.  Kliuck. 
43  Barb.  203. 


526  THE    LAW    OF   KEW    TEIALS.  [CII.  XVI. 

expected,  and  that  ruling  was  affirmed  by  the  court  al)ove.^ 
But  a  new  trial  was  granted  in  case  of  surprise  by  relying 
on  a  reported  case.-(rt) 

§  12.  More  especially,  surprise  founded  on  mistake  in 
law  cannot  be  a  ground  for  a  new  trial,  where  it  arose 
solely  from  the  negligence  of  the  party  moving.  As  where 
the  affidavits  do  not  show  that  he  had,  but  rather  lead  to 
the  inference  that  he  had  not,  disclosed  all  the  facts  to 
his  counsel,  and  that  the  defence  was  conducted  by  the 
counsel  in  ignorance  of  some  material  facts,  and  therefore 


'  Morgan  w.  Houston,  25  Yt.  570;        =  starkweather    «.     Loomis,     2 
Fuller  V.  llutchiugs,  10  Cal.  523.       Verm.  573. 


(a)  Where  the  mistake  was  one  not  resulting  from  fortuitous  circum- 
stances, but  from  an  error  of  judgment  or  misapprehension  on  the  part  of 
counsel  as  to  some  point  involved  in  the  proceedings ;  a  new  trial  was 
denied.  Heath  v.  Marshall,  4G  N.  H.  40.  So  where  the  defendant  made 
application  for  a  continuance,  for  certain  reasons  stated  in  an  affidavit, 
and  the  plaintiff  elected  to  go  to  trial,  and  admitted  the  facts  stated  in 
the  afifidavit,  and  at  the  second  trial  the  defendant  offered  this  admission 
in  evidence,  and  it  was  excluded.  Kitchen  v.  Eeinsky,  42  Mis.  427. 
After  an  opinion  of  the  Supreme  Court  had  negatived  the  liability  of  B., 
one  of  several  joint  defendants,  the  court  below,  without  notice  to  B., 
and  in  his  absence,  permitted  an  amendment  of  the  complaint,  so  that  the 
action  could  be  prosecuted  against  him  alone,  and  proceeded  to  trial. 
Held,  he  was  entitled  to  a  new  trial  on  the  ground  of  surprise.  Keller  v. 
Blasdel,  2  Nev.  162.  A  defence  to  an  action  of  trespass,  brought  by  an 
administrator,  having  failed,  owing  to  the  incompetency  of  the  defendant 
to  testify  to  the  execution  by  the  plaintifi"'s  intestate  of  a  mortgage, 
accidentally  destroyed  by  fire,  to  which  the  defendant  was  a  subscribing 
witness ;  a  motion  for  a  new  trial  was  made,  supported  by  an  affidavit  of 
a  son  of  the  intestate,  that  he  had  examined  the  mortgage,  and  knew  his 
father's  signature  to  it  was  genuine,  and  by  the  affidavit  of  the  defendant, 
that  he  did  not  discover  that  the  intestate's  son  knew  of  the  above  fact 
until  after  the  trial,  and  that  the  other  subscribing  witness  to  the  mort- 
gage was  not  called  at  the  trial,  because  he  had  stated  that  he  could  not 
sufBciently  recollect  the  transaction.  Held,  a  new  trial  should  have  been 
granted.     Knox  v.  Bigelow,  1.5  Wis.  415. 


en.  XVI.]  SURPRISE.  527 

not  on  the  proper  grounds.^  But  where  the  court  and 
the  parties  acted,  at  a  previous  stage  of  the  proceedings, 
on  a  supposed  state  of  the  law  which  would  exclude 
certain  depositions ;  it  was  held  that  their  suhsequent 
reception  was  such  a  surprise,  as  would  justify  a  new 
trial.2 

§  13.  Ignorance  of  a  party,  or  of  his  attorney,  of  the 
state  of  the  case,  is  no  ground  for  a  new  trial.'  Thus  a 
new  trial  will  not  be  granted  of  an  issue  on  a  garnishee's 
answer,  because  the  garnishee  believed  he  had  been  dis- 
charged on  his  answer,  and  therefore  did  not  prepare  for 
the  issue.*  But  where  by  law  a  verdict  may  be  taken 
after  the  death  of  a  sole  plaintiff',  happening  on  the  first 
day  of  the  circuit;  and  in  such  case  the  defendant,  be- 
lieving that  the  suit  had  abated,  refused  to  appear :  on 
producing  an  affidavit  of  merits,  a  new  trial  was  ordered 
on  terms.^  So  a  new  trial  was  granted,  where  it  was  dis- 
covered that  a  conveyance  was  made  by  a  man  and  his 
daughter,  who  upon  the  trial  had  been  considered  as  his 
wife.^(a) 

§  14.  A  new  trial  was  granted,  where  a  motion  for 
postponement  was  made  for  the  absence  of  a  witness,  but 
one  of  the  defendants,  when  the  cause  was  called  on  for 
trial  and  the  motion  made,  lay  sick  in  Philadelphia,  and 

'  People  V.  O'Brien,  4  Parker,  '  O'Brien  v.  Liddcll,  10  S.  &  M. 

203.  371. 

2  Morrow  v,  Ilatfield,  G  Humph.  ^  Broas  v.  Merscreau,  18  Wend. 
108.  653. 

3  Legrand  V.  Baker,  6  Monr.  235.  s  Daniel  v.  Eose,  1  N.  &  M'C. 

33. 

(a)  The  fact,  that  a  defendant  had  forgotten  at  the  trial,  that  before 
suit  brought  he  had,  through  his  attorney,  tendered  a  certain  sum  in 
satisfaction  of  his  claim,  which  was  refused,  and  which  was  less  than  the 
verdict,  is  no  ground  for  a  rehearing  after  final  judgment,  on  the  ground 
of  accident  or  surprise,  uuder  §  2408  of  the  (Ala.)  Code.  Alliugton  v. 
Tucker,  38  Ala.  G55. 


528  THE    LAW    OF   KEW    TRIALS.  [CII.  XVI. 

the  other  was  unable  to  attend  court,  and  each  was 
io-noraut  of  the  other's  situation,  and  consequently  the 
requisite  proof  was  not  furnished  in  reference  to  the 
witness.\rt)  So  a  new  trial  Avas  granted,  where  the  plain- 
tiii'  was  prevented  from  attending  by  his  daughter's  being 
at  the  point  of  death,  and  several  witnesses,  though 
summoned,  were  prevented  by  various  causes  from  com- 
plying with  the  summons.^  So  illness  of  the  defendant, 
which  prevented  his  procuring  the  attendance  of  material 
witnesses,  or  his  being  present  himself  to  move  for  a 
continuance,  is  ground  for  a  new  trial.  And  where  the 
court  beloAV  refused  to  grant  a  new  trial  for  this  cause, 
the  court  above  granted  it,  although  satisfied  with  the 
verdict.^  So  in  an  inquisition  of  lunacy  a  new  trial  was 
granted,  for  the  reason  that  the  defendant,  as  appeared  by 
affidavits,  was  prevented  from  making  a  defence  by  illness ; 
with  the  additional  i-eason,  of  the  advantage  to  be  derived 
in  a  new  trial  from  the  inspection  had  by  the  chancellor  and 
the  former  jury.^  So  on  motion  to  set  aside  an  inquest, 
taken  in  scii^e  facias  to  revive  a  judgment,  it  appeared  by 
affidavits,  that  the  defendant  lived  at  a  great  distance, 
and  had  been  discharged  in  insolvency,  conformably  to 
his  plea;  that  his  attorney  wrote  to  him,  urging  his 
attendance,  but  he  replied  that  he  was  disabled  from  com- 
plying by  a  fractured  leg,  and  desired  an  adjournment. 
The  inquest  was  set  aside  on  payment  of  costs.' 

§  15.  A  new  trial  may  be  granted  for  the  absence  of  a 

party  who  was  summoned  as  a  witness  in  another  court." 

>  Sherrard  v.  Olden,  1  Ilalst.  344.  ^  Ton    Broeck    v.    Woolscy,    3 

2  Peebles  'c.  Kails,  1  Litt.  24.  Caincs,  100. 

3  Stewart  V.  Durret,3Monr.  113.  <=  South  v.  Thomas,  7  Mon.  59. 
»  Rex  V.  Roberts,  2  Str.  1208. 


(a)  Upon  an  application  for  a  new  trial  on  the  ground  of  surprise 
arising  from  the  sudden  illness  of  a  witness ;  what  he  would  testify  to 
must  be  shown,  and  the  court  is  not  bound  to  take  the  statement  of  the 
applicant  or  his  counsel  for  the  purpose.    Swartzel  v.  Rogers,  3  Kans.  374. 


en.  XVI.]  SURPRISE.  529 

And,  in  general,  for  the  absence  of  a  party  from  court, 
from  unavoidable  circumstances.  In  such  case,  the  ap[>li- 
cation  will  be  watched  with  jealousy,  and  the  power  ex- 
ercised with  caution ;  but,  if  there  is  no  reason  to  believe 
that  the  cause  is  feigned,  a  new  trial  will  be  granted  to 
prevent  a  failure  of  justice.  Thus  an  affidavit  for  a  new 
trial  stated,  that  the  plaintiff  was  prevented  from  reaching 
court,  before  the  trial  took  place,  by  high  water ;  that, 
being  in  the  habit  of  attcndino-  the  court  resrularlv  in 
person,  he  had  no  counsel  who  knew  anything  of  the 
facts  of  the  case;  that  his  demand  was  just  and  true; 
and  that  injustice  had  been  done  him  on  the  trial.  Two 
other  affidavits  were  also  filed,  tending  to  support  the 
affidavits  of  the  plaintiffi  Held,  that  this  was  sufficient 
to  authorize  the  granting  of  a  new  trial. ^  But  a  new  trial 
will  not  be  granted,,  as  of  course,  for  the  party's  unex- 
pected absence  at  the  trial.^  So  a  new  trial  was  not 
allowed,  on  the  ground  of  imprisonment  from  inability  to 
procure  bail,  and  consequent  want  of  preparation  for  trial.^ 
So  where  a  defendant,  at  the  trial  term  of  the  cause,  after 
employing  an  attorney  and  filing  a  plea  in  bar,  left  the 
court,  believing  from  the  state  of  the  docket  and  from 
remarks  made  by  the  presiding  judge  and  solicitor,  out 
of  court,  that  his  case  would  not  be  reached ;  held,  no 
ground  for  a  rehearing.^(rt) 

'  Vannerson  v.  Pendleton,  8  S.        3  Yanez  v.  State,  20  Tex.  656. 
&  M.  452.  4  White  v.  Ryan,  31  Ala.  400. 

2  Devine  v.  Martin,  15  Tex.  25. 

(a)  Where  a  party,  during  a  trial,  left  the  court-room,  without  asking 
the  court  to  wait  for  his  return,  and  went  to  a  hotel  three  squares  dis- 
tant, to  procure  the  presence  of  a  female  witness,  indisposed,  and  on  his 
return  the  evidence  was  closed ;  held  not  a  surprise  entitling  him  to  a 
new  trial.  Thompson  v.  Updegraff,  3  W.  Ya.  G29.  Where  a  party  to 
a  suit,  who  intended  to  testify,  was  detained  by  a  railroad  accident ; 
held,  an  order  refusing  a  new  trial  on  that  account  would  not  be  reversed, 
if  he  was  at  the  place  of  trial  when  it  began,  but  subsequently  went 
away  on  business,  and  it  was  not  stated  whether  his  business  was  urgent 

34 


530  THE    LAW    OF   NEW    TRIALS.  [CII.  XVI. 

§  IG.  It  is  ground  for  new  trial,  that,  where  tiicrc  are 
more  actions  than  one  pending  between  the  same  parties, 
notice  for  trial  is  given  for  one  only,  and  the  party  notified 
thereby  prevented  from  preparing  his  defence.  Thus  A. 
brought  two  suits  against  each  of  the  parties,  B.,  C,  and 
D.,  one  for  slandering  him  as  a  clergyman,  the  other  as  a 
merchant.  Xotice  of  trial  was  served  in  the  three  cases, 
one  against  each  defendant,  nine  days  before  the  circuit. 
The  defendants'  attorney  applied  to  the  plaintiff's  counsel, 
who  resided  near,  to  know  which  causes  were  meant  to 
be  tried.  The  reply  was,  that  he  was  not  informed ;  but 
two  days  after  the  counsel  answered,  that  A.  would  try 
the  suits  for  slander  of  him  as  a  clergyman,  if  he  could 
obtain  his  witnesses,  otherwise  the  other  suits.  The  de- 
fendants' counsel  had  procured  a  stay,  wath  notice  of 
motion  to  set  aside  the  notice  as  vague;  which,  after  the 
circuit,  he  countermanded,  and  the  plaintiff's  attorney 
gave  notice  of  motion  for  costs,  for  preparing  for  trial, 
and  of  the  motion.  The  motion  was  denied,  with  costs, 
upon  the  ground  that  the  notices  were  insufficient.^ 

§  17.  But,  in  cases  of  this  kind,  the  court  will  inquire 
whether  the  defendant  could  reasonably  be  misled,  and 
will  <rrant  or  refuse  the  motion  at  their  discretion.  Thus 
a  notice  for  a  writ  of  inquiry  was  for  "  Tuesday,  the  14th 
of  January,  instant,"  but  the  14th  was  Thursday,  on  which 
day  the  writ  w^as  executed.  On  the  morning  of  the  14th 
the  plaintiff's  attorney  met  tlio  defendant,  who  told  him 

'  Lislier  v.  Parmelee,  1  Wend.  23. 

or  not.  Yatcr  v.  Mullen.  24  Ind.  276.  It  is  no  ground  for  a  new  trial, 
that  the  defendant,  hearing  that  the  presiding  judge  was  sick,  and  in- 
ferring that  one  of  his  own  counsel  would  hold  the  court,  and  that  there- 
fore the  cause  would  not  be  tried,  went  away,  expecting  to  return  in 
time  for  the  trial,  at  which  he  proposed  to  give  material  testimony,  and 
was  detained  by  an  accident  to  a  freight  train,  so  that  he  did  not  reach 
court  in  time  to  testify.    Yater  v.  Mullen,  23  lud.  5G2, 


CH.  XVI.]  SURPRISE.  531 

his  notice  was  irregular,  and  he  should  not  attend,  but 
did  not  point  out  the  irregularity.  Held,  as  the  de- 
fendant was  not  misled,  but,  relying  on  the  irregularity, 
neglected  to  attend,  and  was  not  stated  to  have  thereby 
sufiered  any  injury,  the  execution  of  the  writ  should  not 
be  set  aside.' 

§  18.  And  more  especially  will  this  disposition  l)e  made 
of  a  motion  founded  upon  such  an  irregularity,  where  the 
time  of  holding  the  sittings  was  matter  of  general  noto- 
riety ;  such  motion  being  regarded  as  a  captious  attempt 
to  take  advantage.^  Or  where  the  defendant's  counsel  or 
attorney  was  not  misled ;  notice  of  the  court  beino-  re- 
quired to  be  published,  though  not  appointed  l)y  law,  and 
the  attorneys  living  in  the  immediate  neighborhood  of 
the  circuit.^ 

§  19.  The  affidavit  of  B.,  one  of  two  defendants,  A.  and 
B.,  stated,  that  they  were  in  partnership  as  wine  mer- 
chants, B.,  however,  having  the  whole  management  of 
the  business ;  that  an  information  was  filed  against  them, 
for  mixing  wines  and  smuggling  brandy;  that  both  were 
served  with  subpoenas,  to  which  they  appeared  and  pleaded 
by  separate  solicitors  and  clerks;  that  B.  instructed  his 
solicitor  to  prepare  his  defence;  that  the  case  was  tried, 
and  the  crown  recovered  a  verdict,  though  neither  B.  nor 
his  attorney  had  received  notice  of  trial;  that  B.  was 
prepared  for  his  defence,  and  A.,  relying  on  him,  had 
made  no  preparation ;  that  B.  had  never  heard  that  notice 
of  trial  had  been  given  to  A.,  and,  for  want  of  notice  to 
B.,  no  steps  were  taken  for  the  defence  of  either  party. 
B.'s  attorney  testified,  that,  after  procuring  a  copy  of  the 
information,  he  never  had  notice  of  further  proceedings, 
till  the  day  before  the  trial,  when  he  heard  from  the  agent 


'  Batten  v.  Harrison,  3  Bos.   &        ^  Wolfe  v.  Horton,  3  Caines,  8 
Pul.  1.  3  Bander  v.  Covill,  4  Cow.  CO. 


h32  THE    LAW    OF   NEW    TRIALS.  [CH.  XVI. 

of  tliG  attorney  of  x\.,  that  the  trial  would  occur  the  next 
day;  that  neither  he  nor  his  clerk  in  court  had  received 
notice  of  trial ;  that  he  never  communicated  with  A.  con- 
cerning the  case,  or  wdth  his  attorney  or  agent,  till  the 
day  before  the  trial ;  and,  had  he  received  due  notice  of 
trial,  should  have  been  prepared  for  the  defence  of  B., 
wdiich  would  have  been  also  the  defence  of  A.,  wdio,  he 
believed,  had  a  good  defence.  The  attorney  for  A.  testi- 
fied, that  he  was  employed  ibr  A.  only,  but,  having  learned 
that  B.'s  solicitor  was  preparing  for  his  defence,  which 
would  also  be  that  of  A.,  he  thought  it  needless  to  do 
anything  further  for  A.,  and,  wdien  notice  of  trial  was 
received  by  his  agent  as  attorney  of  A.,  he  w^as  not  aware 
that  A.  had  received  no  notice.  The  agent  of  B.'s  attorney 
testified,  that  he  had  instructed  his  clerk  in  court  to  ap- 
pear for  B.,  wdiich  he  did,  and  that  a  separate  plea  was 
afterwards  entered  for  B. ;  and  that  neither  he  nor  his 
clerk  in  court  had  received  notice  of  trial.  Held,  the 
parties  were  entitled  to  separate  notices  of  trial,  and  the 
rule  was  made  absolute  as  to  both.^ 

§  20.  Where  a  new  trial  is  ordered,  unless  new  notice 
of  trial  is  given,  a  third  trial  will  be  granted.^ 

§  21.  In  England,  if  a  defendant  enter  the  case  in  the 
marshal's  book,  with  a  memorandum  ne  recipiatur^  and  the 
plaintiff  proceed  to  trial,  as  if  there  were  no  defence, 
without  notice;  a  new  trial  will  be  ordered.^ 

§  22.  AVhere  notice  of  a  writ  of  inquiry  was  served 
upon  the  defendant  himself,  and  not  upon  his  attorney, 
and  the  time  appointed  was  between  the  hours  of  ten  and 
five,  for  both  of  which  causes  the  proceeding  w^as  irregu- 


'  Atty.,  &c.  V.  Stevens,  3  Price,        ^  "Walsou  v.  Gowar,  8  Dow.  itR. 
72.  4oG. 

2  Binglev  v.  Mollison,  3   Doug. 
403. 


en.  XVI.]  SURPRISE.  533 

lar;  niul  excessive  damages  were  awarded;  althougli  an 
attorney's  clerk  attended  at  the  execution  of  the  writs  on 
the  part  of  the  defendant,  cross-examining  the  jilaintiff's 
witnesses  and  producing  a  witness  for  tlie  defenchuit:  held, 
the  inquiry  should  be  set  aside  upon  payment  of  costs, 
and  a  new  writ  executed  before  a  judge  at  the  next 
assizes.^  So,  in  Texas,  where  a  petitioner  alleged  "that 
the  appellee  had  obtained  a  judgment  against  the  pe- 
titioner as  a  non-resident  debtor,  that  he  was,  at  the  time 
of  the  institution  of  the  suit,  and  had  been  for  many 
years  before,  a  citizen  of  the  State,  that  he  had  no  notice 
of  the  pendency  of  the  suit,  nor  of  the  proceedings  against 
him,  that  they  were  ex  partc^  that  he  had  a  good  defence, 
and  could  have  made  it  if  he  had  had  notice,  and  prayed 
that  the  judgment  might  be  opened  and  he  have  an  op- 
portunity to  make  a  defence;"  it  was  held,  on  demurrer, 
that  the  petitioner  was  entitled  to  a  new  trial,  by  Hart. 
Dig.  art.  783,  and  on  principles  of  equity  jurisprudence.^ 
And,  in  general,  a  new  trial  will  be  granted,  after  the 
term,  where  the  defendant  has  a  meritorious  defence,  and 
has  not  had  actual  notice  of  the  suit,  or  has  not  been  per- 
sonally served.^ 

§  23.  "Wliere  one  of  two  defendants,  who  alone  is  served 
with  a  summons,  gives  notice  of  appearance  for  both, 
as  attorney  for  his  co-defendant,  but  answers  onl}-  for 
himself;  and  after  trial  on  the  merits  the  complaint  is 
dismissed ;  and,  after  a  case  made  upon  appeal,  it  is  moved 
that  the  recital  in  the  judgment  that  both  defendants 
appeared  should  be  stricken  out,  upon  evidence  that  the 
notice  was  so  drawn  by  mistake,  and  it  is  granted :  this  is 
no  ground  to  vacate  the  judgment  and  grant  a  new  trial. 
The  plaintiff  may  well  be  relieved  from  proceedings  had  on 
the  faith  that  the  notice  so  given  was  authorized  and  legal, 

•  Yate  V.  Swaine,  Barnes,  233,  '  Kitclien  v.  Crawford,  13  Tex. 
See  Love  v.  Jarret,  ib.  4."")7.  516. 

2  3Iussina  v.  Moore,  13  Tex.  7. 


534  THE   LAW   OF   NEW    TRIALS.  [CH.  XVI. 

and  which  would  be  valid  if  such  notice  was  authorized, 
but  invalid  if  not  authorized ;  but  not  from  any  other 
proceedings.  The  correction  of  the  unauthorized  notice 
after  judgment,  in  a  trial  upon  the  merits  as  if  both 
defendants  had  appeared,  if  there  is  no  error  in  the  judg- 
ment, is  not  ground  for  a  new  trial.^ 

§  24.  The  facts,  that  a  party,  from  looking  at  the  docket, 
concluded  that  his  suit  would  not  come  on  at  a  given  time, 
and  that  it  did  come  on  sooner,  in  consequence  of  which 
the  cause  was  tried  in  the  absence  of  a  material  witness,  to 
whom  it  would  have  been  specially  inconvenient  to  remain 
in  court,  and  who  was  immediately  summoned  upon  the 
calling  of  the  case ;  furnish  no  ground  for  setting  aside  the 
verdict  and  granting  a  new  trial.^  Nor  is  it  ground  for  a 
new  trial,  that  the  case  came  on  sooner  than  the  party  ex- 
pected, in  consequence  of  his  mistaking  the  day  set  for  trial. 
The  court  remarked,  that,  if  such  motions  should  prevail, 
"  trial  becomes  a  farce. "^  Kor  will  a  new  trial  be  granted, 
on  account  of  an  unexecuted  agreement  for  postponement.* 
Or  an  alleged  verbal  agreement  in  the  court  below  for  a 
continuance,  between  counsel,  which  is  denied  by  one  of 
them.* 

§  25.  A  new  trial  was  allowed,  where,  on  account  of  an 
irregular  calling  of  the  docket,  the  party  was  forced  by  the 
court  unreasonably  to  trial,  in  the  absence  of  his  client ; 
and  he  need  not  show  that  he  had  made  any  preparation, 
or  that  a  different  result  would  probably  occur  on  another 
trial.^  So  where  a  trial  was  had  by  twelve  o'clock  on  the 
first  day  of  the  term,  before  the  defendant  arrived,  and  in 
the  absence  of  material  witnesses.^  So  a  trustee,  in  an 
action  returnable  before  a  justice  of  the  peace,  failed,  by 

1  Keyes«.  Moultrie,  1  Bosw.  G2!).         ^  Birdwcll  v.  Cox,  18  Tex.  535. 

2  McAuley  v.  Loekert,  4  Ilumph.  "^  Donnallen  v.  Lennox,  G  Dana, 
229.  89. 

3  Stout  v.  Colvor,  G  Mis.  254.  ^  Price  v.  Ford,  7  Monr.  399. 
<  Moody  V.  Harper,  33  Miss.  465. 


en.  XVI.]  SURPRISE.  535 

accident,  to  appear  at  the  hour,  and  his  default  was  entered, 
after  which  the  justice  left  the  place.  The  trustee  appeared 
in  the  course  of  the  same  day,  the  justice  and  the  plaintiff's 
attorney  being  present,  and  denied  his  liability,  and  asked 
for  a  new  trial,  which  was  refused.  On  petition  to  the 
Supreme  Court  for  a  new  trial,  the  trustee  denying  under 
oath  that  he  was  indebted,  or  had  any  pro^ierty  of  the 
principal,  a  new  trial  was  granted,  the  costs  of  the  petition 
to  abide  the  result  of  the  suit.^  So  a  new  trial  was  granted, 
where  a  defendant  in  a  criminal  case  employed  no  counsel, 
but  was  in  attendance  with  witnesses  on  the  day  of  trial, 
and,  during  a  brief  and  necessary  absence  from  the  court- 
room, judgment  was  rendered  against  him. 


2 


§  26.  A  new  trial  was  granted,  on  payment  of  costs, 
where  the  defendant's  attorney,  from  a  conversation  with 
the  partner  of  the  plaintiff's  attorney,  whom  he  supposed 
to  be  also  an  attorney  for  the  plaintiff,  was  led  to  suppose 
the  case  could  not  come  on,  because  there  were  eighteen 
prior  cases,  and  that  the  plaintiff's  attorney  himself  w^ould 
not  attend.3  So  where  a  case  was  numbered  17,  and  number 
14  was  a  trial  of  a  right  of  way,  which  was  expected  to 
occupy  most  of  a  day,  Init  was  postponed  during  the  absence 
of  counsel  in  nmuber  17  for  the  purpose  of  preparing  his 
briefs.* 

§  27.  But  a  new  trial  was  denied,  where  the  case  stood 
number  90  in  the  printed  list,  and  the  written  list,  affixed 
in  the  usual  way  on  the  outside  of  the  court,  ended  at 
number  26 ;  but  the  case  was  tried,  upon  the  statement 
that  there  was  no  substantial  defence,  and  that  the  plaintiff' 
had  witnesses  in  attendance  from  a  distance.  Both  counsel 
and  attorney  were  present,  but  declined  to  appear ;  and  the 

1  Riguey  v.  Hutchius,  9  N.  II.         »  Siiycr  v.  Finck,  2  Caiues,  336. 
257.  ^  Beazley  v.  Sliapleigli,  1  Price, 

2  St.  Louis  tJ.Murpliy,  24  Mis.  41.     201. 


536  THE    LAW    OF    NEW    TRIALS.  [CH.  XVI. 

motion   lor  now  trial  was  accompanied  by  no  affidavit  of 
merits,'(_(() 

§  28.  "Wlicre  a  r>arty  is  surprised  l)y  the  nnantliorized 
withdrawal  of  his  witnesses  after  the  trial  has  commenced, 
the  better  j)ractice  is  to  apply  for  a  continuance  or  postpone- 
ment ;  and  refusal  of  the  application  might  be  ground  for 
a  new  trial. ^  And  it  is  held  ground  of  new"  trial,  that  a 
wntness,  regularly  summoned  and  in  attendance,  unex- 
pectedly absents  himself.-'^  As,  for  example,  that  a  witness, 
duly  subpoenaed,  and  under  whom  the  plaintiff  claims  title 
to  a  note  on  wdiich  the  suit  is  brought,  absents  himself  at 
the  moment  of  trial,  so  that  tlie  defendant  cannot  procure 
his  testimony.'*  So  a  new  trial  was  granted,  wdiere  an 
iniiDortant  witness  for  the  defendant,  detained  by  sickness 
in  his  family,  arrived  during  the  opening  argument  for 
the  plaintiff;  and  a  motion  to  examine  the  witness  w^as 

1  Blackburst  v.  Bulwer,  1  Dow.  See  Pilot,  &c.  v.  Chapman,  11  Cal. 
«&Ry.  551.  101. 

2  Cotton  V.  State,  4  Tex.  2G0.  «  Tilden  v.  Gardiner,  35  Wend. 

3  Rugglcs  V.  Hall,  14  John.  113.  GG3. 

(a)  On  a  motion  to  set  aside  a  verdict  taken  for  the  defendant  in  a 
replevin  case  in  the  absence  of  the  plaintiff,  when  the  former  noticed 
the  case  for  trial ;  the  defendant  need  not  prove  his  notice  of  trial,  where 
this  was  done  to  the  satisfaction  of  the  court  below,  but  its  regularity 
may  be  reviewed  above.  An  affidavit  of  the  plaintiff  may  be  read,  to 
show  that  the  indisposition  of  his  counsel  pi'cvcnted  him  from  producing 
evidence,  which,  he  is  advised,  was  material.  Ilarwood  v.  Smchurst,  1 
Vroom,  230.  An  appellant  from  a  justice  of  the  peace  was  allowed  until 
the  opening  of  court  on  the  second  day  of  the  term  to  enter  his  ay)peal. 
The  entry  was  made  by  him  on  the  first  day,  but  was  inserted  by  the 
clerk  in  an  unusual  place  on  the  docket.  The  appellee's  attorney,  after 
examining  the  docket  for  the  case  without  success  on  the  first  day,  left  a 
memorandum  witli  the  clerk,  rc(iuesting  him  to  enter  his  appearance  if 
the  appeal  should  bo  ciilerod.  The  clerk  assented,  but  inadvertently 
neglected  to  do  so,  and  the  appellee  was  defaulted.  He  had  no  know- 
ledge of  the  fact,  until  an  officer  called  on  him  with  an  execution  issued 
upon  the  judgment.  Held,  he  was  entitled  to  an  injunction  and  a  new 
trial.     Seymour  v.  Miller,  32  Conn.  402. 


CII.  XVI.]  SURPRISE.  537 

oveiTiiled;  and,  in  addition,  the  charge  was  wanting  in 
explicitness.^  So  wliore  a  ]ilaintifF  had  bound  himself  not 
to  ai)})eal,  but,  in  consoquenee  of  his  attorney's  having 
indorsed  tlie  writ,  was  unable  to  use  the  attorney  as  a 
witness,  a  motion  to  sul)stitute  another  person  as  indorser 
being  overruled;  and,  instead  of  becoming  nonsuit, suifered 
a  verdict  to  be  rendered  against  him:  a  new  trial  was 
ordered,  on  such  terms  as  would  place  the  parties  in  the 
same  situation  as  if  there  had  been  a  nonsuit.-  And  a 
verdict  will  be  set  aside  on  the  ground  of  misconduct  of 
the  party,  if,  by  his  procurement  or  connivance,  one  who 
had  knowledge  of  facts,  material  to  contradict  one  of  the 
witnesses,  is  hired  to  keep  out  of  the  way,  so  that  he  may 
not  be  summoned  by  the  other  party.^ 

§  29.  But  a  new  trial  will  not  be  granted  on  an  affidavit 
of  the  absence  of  a  material  witness,  where  the  court  would 
not  continue  the  cause  for  this  reason.^  JS'or  upon  the 
ground  that  the  party  did  not  know  that  the  evidence 
would  be  of  any  use.^  So  where  the  court  below  refused 
to  continue  a  cause  on  the  ground  of  the  absence  of  a 
witness  residing  in  a  neighboring  State,  whose  attendance 
no  eflbrt  had  been  made  to  procure ;  held,  not  cause  for  a 
new  trial.''  And  a  party  is  not  entitled  to  a  new  trial  on 
the  ground  of  surprise  in  the  absence  of  a  material  witness, 
where  no  diligence  has  been  used  to  procure  his  attendance, 
even  though  his  absence  was  procured  by  the  improper 
conduct  of  tlie  prevailing  party ;  although  he  may  have  a 
new  trial  on  the  ground  of  such  conduct.^  So  where  a 
defendant  was  surprised  by  the  sudden  close  of  the  plain- 


•  Watterson    v.     Wattcrson,     1  s  jjobinson  ».  Stato,  l.")  Tex.  311. 
Head,  1.  ^  The    State   v.  Smith,  8   Kich. 

^  Ililey  V.  Emerson,  5  N.  IT.  581.  4G0. 

3  Crafts  V.  Union,  &c.,  3(3  N.  II.  '  Carey  v.  King,  5  Geo.  75;   36 

74 ;  5  Geo.  75.  N.  11.  4-1. 

*  Peebles  v.  Overton,  3  Murph. 
384. 


538  THE   LAW    OF   NEW    TRIALS.  [CH.  XVI. 

tiff's  case,  and  one  of  his  witnesses  had  not  yet  arrived ; 
held,  no  o-round  for  a  new  triaL^(c/) 

§  30.  It  is  no  ground  for  a  new  trial,  that  a  party  forgot 
the  presence  of  a  witness,  at  a  conversation  on  tlie  subject 
of  the  suit,  and  in  consequence  did  not  obtain  his  testi- 
mony.^ So,  where  a  witness,  who  had  been  once  examined 
at  length,  but  wlio  w\as  not  under  subpoena,  declined  to  go 
a  second  time  upon  tlie  stand,  and  the  court  refused  to 
compel  him  so  to  do;  held,  such  refusal  was  no  ground  for 
a  new  trial. •'' 

§  31.  A  new  trial  Avas  granted,  wdiere  the  attorney  of 
one  of  tlic  parties  had  in  his  hands  a  deed,  but  before  the 
trial  parted  with  it,  without  notice  to  the  other  party,  and 
was  subpoenaed  to  produce  it.'* 

§  32.  The  fact,  that  a  witness  on  the  trial  forgot  to  state 
a  material  fact  on  account  of  intoxication,  is  no  ground 
for  a  new  trial.^  Or  inadvertently  omitted  to  state  all  he 
knows   material  to  the  case.^     Or  forgets  or   refuses  to 


'  "Wells  V.  Sanger,  21  Mis.  354.  ^  Jackson  v.  Warford,  7  Wend. 

2  IMunn  0.  Worrall,  10  Barb.  221.      02. 

3  3Ioreiu  v.  Solomons,  7  Rich.  ^  McQueen  v.  Stewart,  7  Ind. 
97  535 

6  WaUs  i\  Jolinson,  4  Tex.  311. 

(a)  The  fact,  that  an  important  witness  "moved  and  travelled  about 
a  great  deal  before  the  trial,  so  that  it  was  exceedingly  difficult  to  ascertain 
his  whereabouts  so  as  to  obtain  his  testimony,"  does  not  constitute  a  ground 
for  a  rehearing,  after  final  judgment.  Allington  v.  Tucker,  38  Ala.  655. 
The  absence  of  a  witness,  a  clerk  of  the  party  aggrieved,  on  the  supposi- 
tion that  the  cause  would  occupy  a  longer  time  than  it  did,  is  no  ground 
for  a  new  trial.  Speeding  v.  Young,  16  C.  B.  (N.  S.)  824.  A  new  trial 
will  not  be  granted,  because  a  witness  who  had  been  present  through  a 
part  of  the  trial  was  missing  when  called  to  testify,  when  no  motion  was 
made,  upon  the  discovery  of  his  absence,  to  postpone  the  trial,  or  to 
procure  his  testimony  de  bene  esse,  and  when  other  witnesses  had  testified 
as  to  the  same  matter,  and  covered  all  the  ground  as  fully  as  he  could 
have  done.     Read  v.  Barker,  1  Vroom,  378. 


en.  XVI.]  SURPRISE.  539 

give  expected  testimony.^    Though  it  is  otherwise  if  the 
witness  purposely  concealed  a  fact.^ 

§  33.  Errors  of  judgment  of  the  engineer  appointed  by 
the  defendant,  in  not  delineating  on  the  plan  certain  ob- 
jects which  might  have  tended  to  support  the  defence,  do 
not  atibrd  ground  for  a  new  trial.^ 

§  34.  The  death  of  a  witness  is  ground  of  surprise,  to 
support  a  motion  for  a  new  trial.* 

§  35.  It  is,  in  general,  a  good  cause  for  granting  a  new 
trial,  that  the  party  has  been  surprised  by  evidence.^  But 
a  new  trial  will  not  be  granted,  for  the  purpose  of  giving 
opportunity  to  prove  a  trade  so  notoriously  illegal,  that 
the  plaintitf  must  have  known  it  to  be  so;  on  the  ground 
that  the  jmy  at  the  former  trial  were  expected  so  to  find 
without  evidence.^  ISTor  for  a  mistake  in  not  meeting 
evidence.'^ 

§  36.  A  new  trial  was  granted,  where  a  witness  from 
mistake  failed  to  prove  the  necessary  fact  to  make  out  a 
defence,  the  witness  having  previously  assured  the  defend- 
ant that  he  could  and  would  prove  such  fact,  whereby  the 
defendant  was  prevented  from  procuring  other  testimony 
to  prove  the  same  fact,  which  it  would  have  been  in  his 
power  to  do.^  But,  in  such  case,  the  affidavit  should 
allege  that  the  witness,  by  previous  statements,  deceived 
the  party  as  to  what  he  would  swear ;  and  that  the  party 
could  prove  the  facts  to  be  difi:erent  by  other  evidence.^ 
And,  in  general,  it  is  held  that  a  party  is  not  entitled  to 
a  new  trial  on  the  ground  of  surprise,  occasioned  by  a 

•  :\rartin  v.  Clark,  1  Hemp.  259.        ^  Gist  v.  Mason,  1  T.  R.  84. 

2  Kiiii;  ;?.  Gray,  17  Tex.  02.  7  Gilt  v.  Warner,  1  J.  J.  Mar. 

3  Palmer  v.  Fiske,  2  Curtis,  C.  C.      590. 

14.  8  Wilson  V.  Brandon,  8  Geo.  136. 

*  South  V.  Thomas,  7  Monr.  59.  «  Theobald  v.  Hare,  8  B.  Men. 
5  Sauford,  &c.  v.  Wiggin,  14  N.     39. 

H.  441. 


540  THE   LAW    OF   NEW    TRIALS.  [CIL  XVI. 

witness,  whom  lie  called,  giving  different  evidence  from 
tliat  wliicli  he  expected  him  to  give.^ 

§  37.  The  qualification  is  sometimes  made,  that  surprise 
at  testimony  given  is  no  ground  of  new  trial,  unless  it 
occurred  in  the  examination  of  a  necessary  witness;  as 
the  witness  to  a  deed.^  Or  unless  the  affidavit  shows  how 
the  witness  will  be  contradicted,  and  why  he  was  not 
before.^  So,  that  the  testimony  of  a  witness  was  not  what 
it  was  represented  to  the  prisoner  by  a  third  person  that 
it  would  be,  is  no  ground  for  a  new  trial,  although  it  was 
the  only  evidence  upon  which  he  relied  for  liis  defence ; 
the  party  not  having  sought  to  examine  the  witness  till 
lie  was  put  on  the  stand,  and  not  having  moved  for  a 
continuance  at  the  trial.^ 

§  38.  A  new  trial,  on  the  ground  of  surprise  in  the  tes- 
timony of  a  witness  on  the  part  of  the  defendant,  will  not 
be  granted  to  the  plaintiff',  when,  before  the  trial,  he  was 
informed  by  the  defendant  that  the  fact  testiffed  was  his 
defence,  and  was  also  told  by  the  witness  how  he  should 
testify,  and  his  testimony  accorded  with  such  statement.^ 
Nor  where  the  deposition  of  the  witness  had  been  filed 
before  the  trial ;  nor  for  any  failure  of  the  adverse  party 
to  produce  a  witness."  Nor  can  a  defendant  allege  as 
ground  of  new  trial  surprise  in  the  testimony  for  the 
plaintiff',  there  having  been  no  cross-examination  oivcom- 
ment.^  And,  in  general,  it  must  be  shown  distinctly  that 
the  evidence  was  an  entire  surprise  on  the  party  appl\'ing, 
so  that  he  had  no  opportunity  of  meeting  it  at  the  trial ; 
and  it  is  not  enough  that  it  came  upon  him  by  way  of 
defence,  without  his  having  had  any  indication  of  it 
through  the  cross-examination  of  his  own  witnesses,  they 

'  Graeter  v.  Fowler,   7  Blackf.  ^  Mcakim  v.  Anderson,  11  Bfirb. 

554;  Curry  v.  Kuntz,  33  ]\Iiss.  24.  215. 

2  Guard  v.  Risk,  11  Ind.  150.  ^  Gentry  v.  McKehcu,  5  Dana, 

3  Ellis  V.  Kellv,  38  Miss.  O!).-).  34. 

*  Yancz  v.  State,  20  Tex.  OoG.  ?  Bell  v.  Thompson,  2  Chit.  194. 


CII.  XVI.]  SURPRISE.  541 

not  having  Ix'on  recalled  to  contradict  the  defendants,  no 
reason  being  assigned  for  this  not  having  been  done,  and 
no  surprise  being  sworn  to  or  shown,  otherwise  than  in  the 
statement  of  these  circumstances.' 

§  39.  A  new  trial  was  refused  in  an  action  upon  the 
warranty  of  a  horse,  on  the  ground  of  surprise  as  to  the 
nature  of  the  unsoundness  relied  on;  on  afhdavit  of  a 
veterinary  surgeon  that  there  was  no  such  disease  known. ^ 
So  where  the  defendant  was  sued  on  his  warranty  of  the 
soundness  of  a  slave,  and  the  plaintiffs  prevailed  ;  it  was 
held  that  the  defendant  was  not  entitled  to  a  new  trial,  on 
the  ground  that  he  had  been  surprised  by  the  testimony 
which  the  plaintiffs  introduced  as  to  the  unsoundness  of 
theslave.^ 

§  40.  But,  on  the  other  hand,  a  new  trial  was  allowed, 
with  leave  to  amend  the  pleadings,  in  the  following  case : 
In  an  action  by  the  owner  of  a  slave  against  a  steamer,  to 
recover  damages  and  the  statute  penalty,  in  Louisiana,  for 
carrying  a  slave  out  of  the  State  contrary  to  law,  the 
plaintiff's  evidence  in  relation  to  a  slave  named  Granville 
was  excluded,  the  slave  mentioned  in  the  petition  being 
stated  therein  to  be  named  George.  The  j^laintiff's  at- 
torney was  not  aware,  at  the  time  of  instituting  the  suit, 
that  the  slave  was  known  by  another  name,  and  the 
testimony  showed  that  the  slave  was  known  by  the  two 
names,  and  that,- with  the  excluded  testimony,  the  plaintili 
could  establish  his  claim.* 

§  41.  An  indictment  was  found  Xovember  21  for  a 
murder  committed  on  the  11th  of  October  previous.  The 
defendant  was  put  upon  trial  immediately,  and  convicted. 


'  EobertsiJ.  Holms,  25Eng.  Lavr.  '  Anderson  v.  Duflicld,  8  Tox. 

&  Eq.  420.  237. 

^  Atterburry   v.   Fainnauner.    8  *  Holmes  v.  Steamer  Chieftain.  1 

Moo.  32.  La.  An.  136. 


542  THE   LAW    OF   NEW    TRIALS.  [CII.  XVI. 

and  sentenced  for  murder  in  the  second  degree.  The  case 
did  not  appear  to  be  an  aggravated  one.  The  defendant 
made  affidavit  that  he  liad  been  surprised  by  the  evidence, 
and  had  had  no  time  for  a  proper  defence.  Held,  that, 
under  these  and  other  circumstances  of  the  case,  a  new 
trial  should  have  been  granted.^ 

§  42.  After  the  closing  arguments,  the  plaintiff  applied 
to  the  court  to  admit  the  testimony  of  a  material  witness. 
The  court  admitted  it,  and  offered  the  defendant's  counsel 
an  opportunity  to  introduce  proof  in  rebuttal,  which  they 
declined.  The  defendant,  who  was  absent  when  this 
evidence  was  admitted,  made  affidavit,  after  a  verdict 
against  him,  that  he  had  such,  rebutting  evidence,  and 
asked  for  a  new  trial.  His  counsel  also  swore  that  he 
was  ignorant  of  the  existence  of  any  such  evidence.  The 
witness  was  impeached,  and  the  damages  were  excessive. 
Held,  the  defendant  was  not  guilty  of  negligence,  and  a 
new  trial  should  be  granted.^ 

§  43.  A  new  trial  was  refused,  where  the  plaintiff  was 
surprised  by  the  defendant's  denying  his  title,  and  became 
nonsuit.^ 

§  44.  It  is  said  to  be  a  well-settled  rule,  that  a  new  trial 
will  not  be  granted  because  the  party  came  to  trial  unpre- 
pared.* As  in  case  of  neglect  to  have  witnesses  to  prove 
handwriting.'  So  where,  in  an  action  of  slander,  the  de- 
fendant kept  back  evidence  in  justification;  a  new  trial 
was  refused  to  give  opportunity  for  its  introduction."  So 
where  an  award  had  been  made  in  favor  of  the  defendant ; 


'  Rosencrants  v.  State,   G  lud.        ^  Jackson  v.  Roe,  9  John.  77. 
407.  '  Il)id. 

2  Thompson    v.    Clendening,    1        ^  Wits  v.  Polehampton,  2  Salk. 

Head,  287.      See  State  i\  Wis^ht-  647. 

man,  27  Mis.  121;    Alexander  v.        ^  Spoug  v.  Hog,  2  W.  Bl.  803. 
Lewis,  1.  Met.  Ky.  407. 


en.  XYi.]  SURPKISE.  543 

a  new  trial  was  refused,  on  the  ground  of  the  p]aintifi''8 
omitting  to  introduce  certain  evidence.^ 

§  45.  A  prisoner,  advised  by  his  counsel,  that  certain 
evidence,  which  was  admitted,  was  not  admissible  against 
him,  and  so  taken  by  surprise,  may  be  allowed  a  new 
trial,  to  produce,  rebutting  evidence.^  But  a  party  cannot 
be  permitted  to  rely  upon  incompetent  testimony,  and, 
when  such  testimony  is  rejected,  claim  a  new  trial  on  the 
ground  of  surprise;^  especially  if  clearly  illegal.*  As 
where  a  witness  was  rejected  on  the  ground  of  interest.' 
Or  where  a  witness  was  excluded  because  he  was  a  surety 
for  the  costs.^  More  especially  where  the  plaintiif,  sup- 
posing himself  prepared,  urged  a  trial,  and  was  nonsuited 
because  the  evidence  upon  which  he  relied  was  rejected.^ 
So,  upon  the  trial  of  an  issue  in  replevin,  the  plaintiff  ad- 
mitted that  the  defendant  was  a  deputy-sherifl',  and  had 
in  his  hands  certain  writs  described  in  his  brief  statement. 
The  court  ruled,  that  this  was  not  evidence  that  the  debts 
on  which  the  suits  were  brought  were  due.  Held,  this 
ruling  was  not  such  a  surprise  on  the  defendant  as  would 
authorize  a  new  trial.^ 

§  46.  Where  the  credibility  of  a  party's  witnesses  is 
assailed  and  overthrown  quite  unexpectedly  to  him,  and 
he  offers  affidavits  sustaining  their  character,  a  new  trial 
will  be  granted.^  But,  where  the  answer  in  chancery  of  a 
witness  was  filed  among  the  papers  in  a  case  at  law,  but 
was  not  read  to  the  jury,  and  the  plaintiff's  counsel  in 
his  closing  argument  referred  to  the  answer  for  the  pur- 
pose of  impeaching  the  witness,  whereupon  the  defend- 

'  IMcDermolt  v.  U.  S.,  &c.,  3  S.  s  Arrington  v.  Coleman,  2  Hay. 

&  R.  604.  300. 

2  State  V.  Williams,  1  Williams,  ^  McAllister  v.  Barry,  2  Hay. 
724.  290. 

3  Turnley  v.  Evans,  3  Humph.  s  Sanford,  &c.  v.  Wigcin,  14  N. 
222.  H.  441. 

*  Nane  v.  Simpson,  5  Sneed,  612.        a  Wilson  v.  Clarke,  87  Miss.  270. 
5  Haskinsw. Smith,  17  Verm.  263. 


544  THE   LAW    OF   NEW    TRIALS.  [CH.  XYT. 

ant's  counsel  objected  on  the  oTonnd  of  surprise,  and  lie 
was  allowed  to  reply  to  this  point,  and  the  witness  was 
introduced  to  explain  his  answer;  held,  no  ground  for  a 
new  trial. ^ 

§  47.  The  mere  fact,  that  a  witness  used  at  a  former 
trial  of  a  case  was  not  used  at  the  final  trial,  gives  the 
adverse  party  no  ground  for  asking  for  a  ncAV  trial  on 
the  ground  of  a  surprise,  where  the  court  arc  satisfied 
that  all  the  testimony  which  he  thereby  lost  the  oppor- 
tunity of  using  could  only  have  been  used  by  him  as 
impeaching  testimony,  if  the  witness  had  been  intro- 
duced." But  if  the  evidence  to  be  introduced  on  the 
new  trial  will  tend  to  refute  or  repel  that  which  caused 
the  surprise,  it  is  not  material  that  it  may  impeach  the 
witness.^ 

§  48.  It  was  held  no  ground  for  new^  trial,  that  one 
witness  informed  another,  who  had  not  testified,  what  the 
testimony  of  the  former  was;  although  punishable  mis- 
conduct.* But,  in  general,  it  is  ground  of  new^  trial,  that 
one  party  induces  a  witness  for  the  other  to  avoid,  or 
bribes  a  witness  to  testify  in  his  favor.''  "The  ofience 
(briljery)  is  of  a  character  so  odious,  and  so  utterly  at  war 
with  the  due  course  of  justice,  that,  when  once  established, 
its  injurious  cSect  would  ordinarily  be  taken  for  granted, 
unless  very  clearly  disproved."*'  So  a  new  trial  will  be 
granted  for  disingenuous  attempts,  on  the  part  of  the  pre- 
vailing party,  to  stifle  or  suppress  evidence,  thwart  the 
proceedings,  or  obtain  an  unconscionable  advantage.  As 
where  the  defendant,  by  letters  and  persuasions,  without 
the  plaintifi''s  knowledge,  induced  a  witness  to  absent 

>  Harasbarger  «,  Kinney,  G  Gratt.  *  Thomas  v.  State,  27  Geo.  287. 

287.  ^  Barron  v.  Jackson,  40  N.  H. 

2  Sliepberd  «.  Hayes,  IG  Verm.  3G;"i. 

486.  ^  Per  Bellows,  J.,  ib.  3G6. 

»  McFarland  v.  Clark,  9  Dana, 
134. 


CII.  XVI,]  SURPRISE.  545 

himself  from  the  tow.n  in  which  he  lived,  and  in  which 
the  court  was  sitting,  on  the  day  on  which  the  cause  was 
set  down  for  trial,  in  order  to  prevent  the  plaintiff  from 
proving  a  material  fact,  known  to  the  witness,  which  he 
know  was  material,  and  which  he  had  reason  to  helieve 
could  be  proved  by  no  one  but  himself.'(a) 

'  Carey  v.  King,  5  Geo.  75. 

(a)  Where  a  party  has  been  vigilant,  and  has  used  every  reasonable 
precaution  in  preparing  for  trial,  and  is  taken  by  surprise  by  the  intro- 
duction of  evidence,  which  he  could  not  reasonably  have  anticipated, 
bearing  upon  a  material  fact  and  contributing  to  an  unfavorable  verdict ; 
he  will  be  entitled  to  a  new  trial.  Holbrook  v.  Nichol,  3G  111.  161.  So, 
where  a  witness,  called  to  prove  a  material  fact,  testifies  directly  con- 
trary to  his  assertions  made  to  the  party  calling  him  before  the  trial ; 
providing  the  party  shows  he  can  produce  testimony  to  the  fact ;  and 
though  a  continuance  was  not  moved  for  at  the  time.  Eodriguez  v.  Com- 
stock,  24  Cal.  85.  So  where  a  defendant's  witness  testifies  differently 
from  what  he  had  a  right  reasonably  to  expect ;  where  there  was  no  want 
of  diligence  in  guarding  against  such  surprise,  and  he  is  injured  thereby. 
Todd  V.  State,  25  Ind.  212.  On  an  affidavit  of  the  plaintiff's  attorney, 
that,  to  establish  his  case,  he  had  relied  on  a  statement  made  by  the  de- 
fendant to  the  sheriff  on  service  of  the  writ,  but  had  been  misled  by  the 
sheriff's  testifying  differently  from  his  statement  made  to  the  attorney 
on  the  morning  of  the  trial,  whereby  another  witness  had  not  been  sent 
for;  held  error  to  refuse  a  new  trial.  Delmas  v.  Margo,  25  Tex.  1.  A 
new  trial  will  not  be  granted  on  the  ground  that  witnesses  testified  dif- 
ferently from  what  they  did  in  a  former  trial,  when  it  does  not  appear 
that  any  efforts  were  made  to  refresh  their  minds  or  direct  their  atten- 
tion to  the  points  of  difference.  Howell  v.  Howell,  37  Mis.  124.  Nor 
upon  an  affidavit,  that  a  party  to  a  suit  was  surprised  at  the  admission 
of  a  certain  witness,  and  at  his  testimony,  as  different  from  statements 
made  in  conversation  by  the  witness  with  him,  as  he  understood  it. 
Klockenbaum  v.  Piersou,  22  Cal.  160.  Untler  the  law  allowing  parties 
to  testify,  where  the  plaintiff  simply  swears  to  the  truth  of  his  com- 
plaint, it  is  doubtful  whether  the  defendant  can  in  any  case  have  a  new 
trial,  on  the  ground  alone  of  surprise.  Cox  v.  Hutchings,  21  Ind.  219. 
Especially  if  the  plaintiff  had  full  knowledge  of  the  fact.  Peck  v. 
Hensley,  21  Ind.  344.  A  defendant  whose  property  was  attached  filed 
an  evasive  answer,  under  oath,  admitting  the  debt  sued  on.  A  subse- 
quent attaching  creditor  intervened,  and,  on  the  trial  of  the  right  to 
35 


546  THE   LAW    OF   NEW    TRIALS.  [CH.  XVI. 

§  49.  A  new  trial  will  not  be  granted,  where  the  sur- 
prise arises  out  of  the  face  of  a  paper,  on  which  alone  the 
right  of  the  party  to  recover  depen(ls.'(rt)  !Xor  for  the  pro- 
duction of  a  paper  referred  to  in  the  petition.-  Nor  for 
the  reading,  at  the  trial,  of  a  letter  of  the  defendant, 
toucliing  the  matter  in  suit.^  Nor  because  the  defendant 
did  not  use  a  deposition  taken  by  him.^  ISTor  on  the  ground 
of  not  find  in  o-  among;  the  files  of  the  court  material  writ- 
ten  evidence,  where  no  attempt  was  made  to  ascertain 
whether  the  evidence  was  among  the  files,  until  the  case 
was  announced  for  trial.^  But  a  new  trial  has  been  granted 
in  case  of  nonsuit  for  want  of  a  paper.^  Or  where  papers 
and  evidence  are  lost.''  So  where  the  clerk  of  the  admi- 
ralty had  failed  to  bring  with  him  the  necessary  docu- 
ments.^ So,  in  case  of  fraudulent  sale,  the  defendants, 
officers,  failed  to  prove  the  judgment  under  which  they 


'  Cockrill   V.  Calhoun,  1    N.  »fc  ^  Liunard  v,  Crossland,  10  Tex. 

McC.  285.  462. 

2  McNeally  c.  Stroud,  22    Tex.  ^  Smith  t.  Cuff,  2  Chit.  271. 
229.  7  Wilkinson   v.   Martin,  13  La. 

3  Henckloy    v.   Hcndrickson,    5  An.  479. 

McLean,  170.  ^  D^Aguilar  v.  Tobin,  2  Mar.  265. 

*  Briggs  V.  Gleason,  1  Williams, 
114. 


hold  the  property,  the  defendant  in  the  first  action,  without  any  notice 
that  he  should  do  so,  testified  that  the  debt  was  not  due.  Held,  the 
plaintiff  was  entitled  to  a  new  trial.  Coghill  v.  Marks,  29  Cal.  673.  A 
refusal  to  allow  evidence  that  the  defendant's  slave  under  his  direction 
shot  the  plaintiff's  mare,  in  support  of  an  averment  that  the  mare  was 
shot  by  the  defendant,  justified  the  plaintiff  in  becoming  nonsuit,  it  being 
too  late  to  amend,  and  the  nonsuit  should  be  set  aside  and  a  new  trial 
granted  on  the  ground  of  surprise.  Guffey  v.  Moseley,  21  Tex.  408.  But 
see  Duunahoe  v.  Williams,  24  Ark.  2G4.  A  party  will  not  be  refused  a 
new  trial  because,  M-hcn  taken  by  surprise  at  the  former  trial,  he  did  not 
put  his  attorney  on  the  stand,  or  immediately  ask  for  a  continuance,  if 
he  had  no  knowledge  at  the  time  of  evidence  which  would  rebut  such 
testimony.     Alger  v.  Merritt,  IG  Iowa,  121. 

(a)  A  new  trial  should  not  be  granted  for  failure  to  obtain  important 
documentary  evidence,  unless  strict  vigilance  is  shown.  Tcift  v.  Marsh, 
L  West  Ya.  38. 


en.  XVI.]  SURPRISE.  547 

justified  the  seizure  of  tlic  goods.  But,  in  the  language 
of  Lord  Mansfield,  "The  verdict  arises  from  a  slip  and  in- 
advertence; it  is  against  law  and  justice.  The  plaintift 
has  no  merits.  The  bill  of  sale  was  fraudulent ;  the  son 
remained  in  possession.  The  recovery  is  manifestly  con- 
trary to  reason  and  justice."'  So  surprise  by  the  rejection 
of  documents,  which  had  been  read  without  any  objection 
on  two  former  trials,  is  good  ground  for  a  new  trial.^  So 
where  a  bill  of  sale,  admitted  on  a  former  trial  without 
objection,  was  objected  to  and  rejected  for  wrong  registra- 
tion, and  the  plaintiff  nonsuited.^  So  where  a  deed  was 
excluded,  which  the  party  had  reason  to  believe  admis- 
sible.* So  where  the  plaintifi:'  in  a  suit  before  a  justice 
relied  upon  an  account,  and  upon  the  trial  in  the  Circuit 
Court,  on  api^eal,  substituted  a  receipt  of  the  defendant, 
for  the  collection  of  moneys,  as  constable,  without  giving 
the  defendant  notice.''  So  where  a  verdict  was  found  for 
the  defendant  in  an  action  upon  an  indorsed  bill,  on  the 
ground  that  the  indorsement  did  not  contain  the  words 
or  order ;  and  the  plaintiff  was  unprepared  to  prove  the 
custom  of  merchants.^  So  an  action  on  a  note  against  the 
maker  was  dismissed  by  agreement,  on  the  defendant's 
paying  the  fees  of  the  plaintift^'s  attorney,  who,  in  pur- 
suance of  the  agreement,  sent  the  note  to  a  person  in  an- 
other part  of  the  country,  stating  to  him,  in  an  accom- 
panying letter,  that  the  maker  had  paid  his  fees,  which 
sum  was  to  be  indorsed  on  the  note.  In  a  subsequent 
action  on  the  same  note,  the  maker  set  up  payment  of  that 
sum,  and  produced  the  attorney's  letter  in  evidence; 
whereupon  the  attorney  testified,  that  he  wrote  the  letter 
at  the  request  of  the  defendant,  and  in  the  terms  of  his 
request,  that  the  payment  of  the  fees  was  made  the  con- 
dition of  the  dismissal  of  the  first  suit,  and  that  such 

■  Martyn    v.   Podgcr,    5    Burr.  ^  Boyce  v.  Yoder,  2  J.  J.  Mar. 

2631.  515. 

2  Helm  V.  Jones,  9  Dana,  26.  ^  Pawley  v.  McGimptey,  7  Yerg. 

'  Palmeri).Poppleston,l  Hawks,  502. 

S07.  6  Edie  V.  E.  I.  Co.,  1  W.  Bl.  295. 


548  THE   LAW    OF   NEW    TRIALS.  [CH.  XVI. 

payment  was  not  to  be  a  credit  on  tlie  note;  and  the  jury 
found  for  the  plaintiff  the  full  amount  of  the  note.  Held, 
the  defendant  was  entitled  to  a  new  trial  on  the  ground 
of  surprise  by  the  testimony  of  the  attorney.'  So  when, 
in  the  progress  of  a  trial,  the  cause  suffers  injustice  from 
the  honest  mistake  of  the  party  or  his  counsel,  in  omitting 
to  offer  in  evidence  the  account-book  of  one  of  the  parties, 
which  had  already  been  made  competent  by  the  necessary 
evidence,  and  w^hich  w^as  material ;  a  new  trial  will  be 
granted.  ^  So,  in  a  criminal  case,  the  fact  of  the  assign- 
ment of  a  judgment  to  the  defendant  became  material, 
and  the  attorney  for  the  commonwealth  denied  the  ex- 
istence of  the  judgment,  which  denial  the  opposing  counsel 
and  the  court  did  not  understand  him  to  make.  Parol 
evidence  to  show  that  such  judgment  had  become  the 
property  of  the  defendant  was  rejected  by  the  court.  On 
application  for  a  new  trial,  it  appeared  that  the  judgment 
was  indorsed  and  made  payable  to  bearer,  and  that  time 
would  have  been  allowed  by  the  court  for  the  production 
of  the  judgment,  if  the  attorney  for  the  commonwealth 
had  been  understood  to  deny  its  existence.  Under  these 
circumstances  a  new  trial  w^as  granted.^ 

§  50.  A  new  trial  was  granted  where  the  defendant, 
relying  upon  a  defect  in  the  declaration,  prepared  no 
defence,  but  the  plaintiff  amended  without  a  rule.^  But 
a  new  trial  will  not  be  granted  to  meet  by  memoranda 
and  receipts  accounts  prior  to  an  alleged  settlement,  where 
the  declaration  authorized  the  plaintiff  to  prove  them.' 
Nor  in  case  of  a  wrong  plea,  by  mistake  of  attorney ;  as 
in  case  of  non  cstfachim  pleaded  to  an  action  for  breach  of 
the  covenant  of  seizin.^    Ilifor  where,  on  a  plea  of  payment, 

'  Arthur  v.  Mitcliell,  10  S.  &  M.        *  2  Show.  154. 
326.  5  Smith  v.  Morrison,  3  Mar.  81. 

2  Rolfe  V.  Rolfe,  10  Geo.  143.  "  McNcish  v.  Stewart,   7  Cow. 

3  The  Commonwealth  v.  Randall,  474. 
Tbacher's  Crim.  Cas.  500. 


en.  XVI.]  SURPRISE.  549 

it  was  objected  that  the  evidence  of  the  only  witness  for 
the  defendant  did  not  sustain  the  plea;  upon  affidavits 
that  no  defence  was  expected,  and  the  plaintiff  therefore 
unprepared  to  contradict  the  witness.^  So  a  new  trial  was 
refused,  where  the  defendant  pleaded  the  acceptance  of 
chests  of  tea  in  satisfaction  of  the  plaintiff's  claim;  upon 
the  plaintiff's  affidavit  that  he  considered  the  plea  as  a 
sham  plea,  and  that  he  had  a  letter  from  the  defendant, 
admitting  he  had  disposed  of  the  tea  to  another  person, 
and  promising  to  pay  the  plaintiff;  which  letter  the 
plaintiff  failed  to  produce.^ 

§  51.  A  new  trial  was  granted,  upon  the  ground  that 
the  defendant  had  proved  by  two  perjured  witnesses  a 
payment  of  $500  of  the  plaintiff's  claim.  The  plaintiff 
corroborated  his  own  affidavit  by  the  testimony  of  several 
witnesses.^  So  where,  in  an  action  for  seduction,  the 
female  testified  that  the  connections  took  place  at  a 
period  which  the  defendant  had  no  reason  to  anticipate, 
when  he  had  left  the  neighborhood,  and  was  thirty  or 
forty  miles  distant  from  her.  The  effect  of  such  evidence 
would  not  be  merely  to  impeach  the  witness,  but  to 
disprove  the  main  fact  of  the  case.* 

§  52.  In  general,  a  new  trial  will  not  be  granted  in  case 
of  nonsuit  for  want  of  evidence.* 

§  53.  The  most  numerous  class  of  cases  of  surprise  are 
those  connected  with  attorneys  and  counsel.  Parties  are 
bound  to  attend  to  their  cases,  and  appear  when  they  are 
reached.  Therefore,  where  the  defendant's  attorney  was, 
from  necessity,  absent  when  the  case  was  reached,  and  it 
was  defended  by  his  partner,  without  the  knowledge  of 


'  Price  V.  Brown,  1  Str.  691.  <  Sargent  v.   Dcuiston,  5   Cow. 

2  Cooke  V.  Berry,  1  Wils.  98.  106. 

3  Peterson  v.  Barry,  4  Biun.  481.         ^  Gorgerat  v.  McCarty,  1  Yea. 

253. 


550  THE   LAW    OF   NEW    TRIALS.  [CH.  XVI. 

the  defendant,  wlio  was  in  the  city  with  witnesses ;  it  was 
held,  that  these  facts  constituted  no  ground  for  a  new 
trial.^  So  absence  of  counsel  when  the  case  was  called,  he 
being  engaged  in  a  trial  in  another  court,  whereby  an  ex 
'parte  hearing  was  had,  is  not  necessarily  ground  for  a  new 
trial ;  and  it  is  a  matter  within  the  discretion  of  the  lower 
court,  which  the  Supreme  Court  will  not  control,  except 
in  an  extreme  case.^  So  where  one  of  a  party's  counsel 
was  called  away  during  the  trial,  but  the  case  went  on 
without  objection  or  motion  for  an  adjournment,  under 
the  charge  of  other  counsel ;  it  was  held  to  be  no  ground 
for  a  new  trial.'  Xor  the  absence  of  counsel  in  attending 
the  jail  as  counsel  for  the  Humane  Society  of  Kew  York; 
although  he  immediately  afterwards  came  into  court, 
and  the  same  day  oflered  to  pay  the  costs.^  Kor  an  affi- 
davit, that  co-defendants  were  only  sureties  on  the  note 
sued  on,  and  unacquainted  with  the  defence;  that  the 
subscriber  alone  attended  to  it,  and  had  employed  counsel 
at  a  previous  term,  who  had  attended  thereto,  but  was 
unable  to  make  such  defence  on  account  of  the  absence  of 
the  subscriber,  who  was  sick  at  the  time  of,  and  had  been 
so  for  a  month  previous  to,  the  trial.''  In  a  very  late 
case,  a  cause  standing  jSTo.  8  was  called  on  at  about  10 
o'clock  A.M.  of  the  second  day  of  the  assizes.  The  plain- 
tiff's attorney  not  being  in  attendance,  and  no  counsel 
instructed  by  him ;  the  plaintiff  was  nonsuited.  His 
attorney  arrived  about  6  P.M.  Erie,  C.  J.,  said :  "The 
plaintiff's  attorney  had  ample  time  to  prepare  his  briefs 
and  instruct  counsel ;  and  he  had  no  right  to  speculate  on 
the  time  the  cause  would  be  called  on.  If,  however,  he 
will  undertake  within  a  fortnight  to  pay  the  costs  of  the 
day  out  of  his  own  pocket,  the  rule  may  be  absolute; 
otherwise,  it  will   be   discharged."^    In   another   recent 

'  Ilawthorne     v.    Bowman,     3  *  Post  v.  "Wric^bt,  1  Caines,  111. 

Sneed,  524.  s  Stetham  v.  Shoultz,  17  111.  100. 

2  Jacob  V.  McLean,  24  Mis.  40.  ^  Townloy  v.  Jones,  8  Com.  B. — 

3  Starr  v.  Torrey,  2  N.  J.  I'JO.  J.  Scott,  N.  S.  288. 


en.  XVI.]  SURPRISE.  551 

case,  a  case  of  default,  the  court  remark :  "  The  attorney 
takes  all  the  blame  upon  himself;  and  there  is  reasonable 
ground  for  granting  the  rule.  The  rule  must  therefore 
be  absolute  on  payment  of  costs  by  attorney."'  (See  §  57.) 
And,  in  still  9,nother,  "VVightman,  J.,  says:  "I  want  to 
know  why  the  attorney  was  not  here.  One  cannot  but 
suspect  that  he  had  no  answer  to  the  action ;  it  was  not 
even  suggested  that  he  was  here,  or  intended  to  he."\a) 

§  54.  A  new  trial  has  also  been  refused,  on  the  ground 
of  neglect  of  counsel  to  prepare  the  case.^  Or  because  the 
attorney  went  into  the  trial  without  preparation,  and  in 
the  absence  of  the  party. ''  Or  because  a  plaintiff  was  non- 
suited by  the  rejection  of  a  copy  instead  of  the  original ; 
upon  the  ground  of  forgetfulness  of  the  counsel  that  the 
latter  would  be  required.^  Or  for  mistake  of  counsel, 
unless  clear.^  As  in  reference  to  the  competency  of  a 
witness.^  Or  upon  the  ground  that  the  leading  counsel 
rejected  the  line  of  defence  adopted  by  the  junior  counsel ; 
more  especially  if  contrary  to  a  suggestion  of  the  court.^ 
So  where  the  ground  assigned  was  the  inattention  and 

'  Neave  v.  Milus,  29  Eng.  L.  and  *  Barrow  v.  Jones,  1  J.  J.  Mar. 

Eq.  30G.  470. 

2  Earl  V.  Dowling,  11  Eng.  L.  ^  Thompson  v.  Thompson,  2 
and  Eq.  420.     See  also  Ratclifif  v.  Hay.  405. 

Hicks,  23  Tex.  173;    Freeman  v.  •*  Dame  v.  Dame,  38  N.  H.  434. 

Xeyland,  ib.  529  ;   Walker  v.  Ar-  '  Packer  v.  Heaton,  9  Cal.  oG8. 

raour.  22  HI.   Go8 ;    Alexander   v.  ^  Pickering  v.  Dowsou,  4  Taun. 

Lewis,  1  Met.  (Ky.)  407.  779. 

3  Gwilt  V.  Crawley,  8  Bing.  144. 

(a)  The  absence  of  counsel,  to  attend  to  business  in  another  court, 
when  a  case  was  called  for  trial,  furnishes  no  ground  for  a  new  trial. 
Power  V.  Gillespie,  27  Tex.  370.  In  Meyer  v.  Smith  (Leg.  Intell.),  a 
new  trial  was  refused,  where  the  case  was  tried  in  the  absence  of  the 
defendant's  counsel,  who,  feeling  indisposed,  left  the  court-room  without 
leaving  any  notice  with  the  court,  or  giving  any  notice  to  the  plaintiff's 
counsel,  who,  after  keeping  his  witnesses  in  attendance  for  a  day  or  two, 
and  receiving  no  word  from  the  defendant's  counsel,  tried  his  cause  when 
it  was  reached. 


552  THE   LAW   OF   NEW    TRIALS.  [CII,  XVI. 

misconduct  of  the  clerk  of  the  defendant's  attorney, 
whereby  tlic  case  had  been  called  on  as  an  undefended 
cause,  the  attorney  having  been  obliged  to  go  to  Ireland.  In 
this  case  there  were  four  defendants,  and  the  three  others, 
a  verdict  having  been  rendered  in  their  favor,  objected  to 
a  new  trial.'  So  where  counsel  declined  to  call  witnesses 
who  were  in  court,  though  requested  to  do  so  by  the  party 
or  his  attorney.^  So  where,  in  an  action  upon  a  bond 
more  than  twenty  years  old,  the  defendant,  in  compliance 
with  the  advice  of  his  counsel,  relied  upon  the  presump- 
tion of  payment,  though  direct  evidence  might  have  been 
produced.^ 

§  55.  And,  in  general,  the  mistake  of  counsel  in  reference 
to  some  matter  of  fact  which  transpired  in  the  course  of 
the  trial,  or  his  erroneous  conclusion  as  to  some  point 
involved  in  it,  does  not  constitute  a  case  within  the 
meaning  of  a  statute,  which  authorizes  the  court,  on 
petition,  to  grant  a  new  trial  when  injustice  has  been 
done  through  accident,  mistake,  or  misfortune.^  If  the 
party  or  his  counsel  failed  in  diligence  in  preparing  for 
the  trial,  or  if  there  was  a  difference  in  opinion  between 
them  as  to  the  best  mode  of  defence,  and  there  was  no 
surprise,  a  new  trial  will  not  be  granted.*  Nor  is  it 
ground  for  granting  a  rule  to  show  cause,  that  the  defend- 
ant was  not  in  attendance  with  his  witnesses,  by  reason 
of  his  attorney's  having  told  him,  that  he  would  be  in 
time  if  he  was  in  court  the  second  day  of  the  term.*'  So 
where  a  party  authorized  his  attorney  to  settle  a  suit,  and, 
supposing  it  had  been  settled,  gave  no  further  attention 
to  it;  this  was  held  no  ground  for  a  new  trial.^ 


'  Breach  v.  Casterton,  7  Bing.  ^  The  Commonwealth  v.  Benech, 

224.  Thatclior's  Grim.  Gas.  G84. 

^  Hall  V.  Stothard,  2  Chit.  2f>7.  c  Davis  v.  Winauts,  3  Harr.  30(5. 

*  Price  V.  Fuquha,  4  ^lunf.  (W.  ^  Patchiu   v.  Wegmau,  14   Mis. 

*  Handy  v.  Davis,  33  N.  11.  411.  151. 


en.  XVI.]  SURPRISE.  553 

§  56.  The  defendant  in  an  action  for  malicious  prosecu- 
tion did  not  prepare  for  trial,  believing  that  the  plaintiff 
did  not  intend  to  prosecute  his  suit,  as  he  had  "gone 
off;"  but  there  was  no  other  indication  that  he  or  his 
lawyer  had  abandoned  it,  and  the  defendant's  attorney 
had  promised  to  inform  him  in  time  in  case  it  should  be 
necessary  to  prepare  for  trial,  but  did  not  do  so.  The 
affidavit  further  stated,  that  the  verdict  was  excessive, 
and  that  he  would  be  able  to  prove  by  witnesses,  whose 
affidavits  were  also  offered,  that  he  had  probable  cause  for 
the  prosecution.  Held,  that  these  facts  were  not  sufficient 
excuse  for  not  being  ready  for  trial,  and  not  sufficient 
ground  for  a  new  trial,  although  the  defendant  swore  that 
tlie  prosecution  for  which  he  was  sued  was  commenced 
without  malice,  and  relied  also  on  excess  in  damages.^ 

§  57.  On  the  other  hand,  cases  sometimes  occur,  where 
a  new  trial  is  granted  for  the  absence  of  counsel.*  So  for 
the  mistake  of  counsel  in  suffering  a  verdict  against  him.^ 
So  a  new  trial  was  granted,  as  in  the  recent  cases  already 
cited  (§  53),  where  a  case  was  lost  from  the  attorney's 
neglect  to  defend  it ;  on  the  terms  of  his  paying  all  costs, 
as  between  attorney  and  client,  thus  putting  the  plaintift 
in  the  same  situation  as  if  the  neglect  had  not  occurred.^ 
So  where  a  cause  had  been  several  days  on  the  trial  list, 
but  was  taken  up  in  the  absence  of  the  attorney ;  a  new 
trial  was  granted  on  payment  of  costs.  Abbott,  C.  J.,  re- 
marked, "  The  circumstance  of  the  cause  being  in  the  list 
of  the  day  is  sufficient  notice  that  it  may  be  tried  in  the 
course  of  the  day,  at  any  time  or  in  any  order,  that  cir- 
cumstances might  render  most  convenient."*  So  a  de- 
fendant  moved  for  a  new  trial,  upon  an  affidavit,  that  the 
cause  was  a  long  way  off  and  was  called  on,  and,  in  the 

'  Hollmrn  v.  Neal,  4  Dana,  120.  *  De  Roufigny  v.  Peale,  3  Taun. 

«  2  Salk.  G4.-).  484. 

'  Riley  v.  Emerson,  5  N.  H.  531.  ^  Fourdrinier  v.  Bradbury,  3  B. 

Ace.  Winn  v.  Young,  1  J.  J.  Mar.  &  Aid.  338. 
52. 


554  THE   LAW   OF   NEW    TRIALS.  [CII.  XYT. 

absence  of  tlic  attorney,  not  defended;  that  he  liad  a  good 
defence  and  was  ready  to  pay  the  money  into  court.  The 
motion  was  granted,  on  the  terms  that  the  money  should 
be  brought  into  court;  that  judgment  should  be  rendered 
of  the  term,  if  the  plaintiff  again  prevailed;  and  that  the 
defendant  should  forthwith  pay  the  costs  of  the  former 
trial  and  of  this  application.^  So  a  cause  was  set  down 
for  trial  at  the  first  sittings  of  the  Michaelmas  term,  and, 
no  one  appearing  for  the  defendant,  was  taken  at  those 
sittings  as  an  undefended  cause,  and  verdict  entered  for 
the  plaintiff.  Upon  affidavit  by  the  defendant's  attorney, 
that  he  was  under  the  impression  that  the  cause  would 
be  tried  at  the  second  sittings  in  that  term,  and  had  made 
a  memorandum  accordingly  in  his  note-book,  the  court 
granted  a  rule  for  a  new  trial,  on  payment  of  costs  by 
the  attorney.- 

§  58.  A  new  trial  will  be  granted,  where  counsel  are 
prevented  by  an  intimation  from  the  judge,  as  to  the  sole 
point  to  be  tried,  from  introducing  evidence  in  reference 
to  another  material  question.^  So  where  the  defendant 
was  proceeding  to  examine  witnesses,  but  was  stopped  by 
the  court,  who  instructed  the  jury  that  the  plaintiff's 
evidence  did  not  sustain  the  action ;  but  they  found  for 
the  plaintiff."*  But  it  is  held  otherwise,  though  in  conse- 
quence of  an  intimation  of  the  judge,  in  favor  of  the  de- 
fendant, upon  his  calling  a  witness,  he  omits  to  examine 
him,  or  introduce  further  testimony.'  So  a  new  trial  was 
refused,  where,  as  the  counsel- for  the  defendant  was  about 
to  address  the  jury,  the  judge  remarked,  that  he  considered 
the  case  as  turning  on  questions  of  law,  and  that  he  should 
instruct  the  jury  to  give  a  verdict  for  a  certain  part  of 
the  premises  claimed ;  whereupon  the  counsel  omitted  to 
argue  the  case.® 

'  Greatwood  v.  Sims,  2  Chit.  269.        <  Durham  v.  Baxter,  4  Mass.  79. 

2  Ncavc  V,  Milns,  29  En;j.  Law  *  Bookman  v.  Bemas,  7  Cow.  29. 
and  E(i.  300.  '  ^  jacksou  v.  Cody,  9  Cow.  140. 

^  Le  Fleming  v.  Simpson,  1  Man. 
&  Ry.  269. 


CH.  XVI.]  SURPRISE.  •  555 

§  59.  The  law  does  not  favor  the  application  of  a  plain- 
tiff for  a  new  trial,  on  the  ground  of  having  had  a  verdict 
against  him  by  surprise ;  because  he  might  have  become 
nonsuit.^  And  this  rule  is  adopted,  though  the  case 
turned  upon  evidence  introduced  by  the  defendant ;  and 
though  the  plaintiff  offers  affidavits  tending  to  show 
perjury  in  the  defendant's  witnesses  and  subornation  by 
him;  counter-affidavits  being  introduced  by  the  defend- 
ant.^ And  in  such  case  equity  will  not  interfere  to  grant 
a  new  trial.^ 

§  60.  A  distinction  is  made  between  the  surprise  neces- 
sary to  furnish  ground  of  new  trial,  and  that  which  is 
sufficient  cause  to  delay  the  trial.*  And  a  similar  distinc- 
tion is  made,  where,  according  to  practice,  a  juror  might 
be  withdrawn^  instead  of  submitting  to  a  nonsuit.' 

§  61.  Similar  questions  arise  in  case  of  the  defendant's 
default.{a)    Thus,  where  the  defendant's  attorney,  through 

'  Richards  v.  Syms,  Bull.  N.  P.  «  Willard  v.  "Wetlicrbee,  1  N.  H. 

326;  Live,  &c.  v.  Oregon,  &c.,  7  18. 

Cal.  40.  5  xj.  S.  V.  Coolidge.  3  Galli.  364. 

2  Harrison  v.  Harrison,  9  Price,  See  People  v.  New  York,  ttc,  8 
89.  CoTV.  127 ;  Hopper  v.  Smith,  1  AY. 

3  Oswald  V.  Tyler,  4  Rand.  19.  &  M.  115. 

(a)  Where  a  party,  in  an  action  to  recover  a  note  in  the  Circuit  Court 
of  the  United  States,  had  never  had  a  trial,  but  was  defaulted  by  mis- 
take, supposing  that  the  case  was  agreed  to  be  continued ;  he  is  entitled 
to  a  trial  on  petition  within  three  years,  under  a  statute  of  the  State  of 
Maine,  and  on  proof  of  a  probably  good  defence.  That  statute  is  not 
repugnant  to  the  provision  in  the  judiciary  act  of  1789,  authorizing  a 
new  trial  on  motion  after  a  verdict.  It  confers  an  additional  right,  not 
inconsistent  with  the  other,  and  not  merely  a  new  remedy  for  an  old 
right.  A  new  trial,  in  such  case,  is  usually  had  by  a  writ  of  review  sued 
oot  and  served,  rather  than  by  bringing  forward  the  old  action,  and 
serving  a  notice  on  the  opposite  side  to  defend.  In  either  case,  all  pro- 
per amendments  in  the  pleadings  will  be  allowed  on  the  new  trial,  and, 
where  the  plaintiff  in  the  former  action  has  since  died,  the  service  must 
be  on  some  administrator  of  the  deceased  who  has  taken  out  loiters  in 
Maine,     Clark  v.  Sohier,  1  W.  &  M.  368. 


556  THE   LAW    OF   NEW    TRIALS.  [CH.  XVI. 

a  misapprehension  of  time,  failed  to  arrive  till  fifteen 
minutes  after  the  hour  at  which  the  summons  was  return- 
able, and,  finding  that  judgment  had  gone  against  his 
client  as  of  default,  thereupon  requested  the  plaintift*,  who 
was  present  with  his  attorney  and  witness,  to  allow  a 
trial  upon  payment  of  the  costs  of  default,  which  request 
was  refused;  the  default  was  held  sufficiently  excused, 
and,  the  plaintift"  having  recovered  upon  the  testimony  of 
his  assignor  alone,  a  new  trial  upon  terms  was  ordered  on 
the  unsupported  affidavit  of  the  defendant.^  But  although 
a  default  be  satisfactorily  excused,  the  court  above  will 
not  order  a  new  trial,  on  the  ground  of  manifest  injustice, 
unless  the  defendant  ofi:er  or  show  that  it  is  in  his  power 
to  produce  some  other  evidence,  besides  his  own  affidavit.^ 
And  it  must  be  a  very  clear  case  of  accident,  mistake,  or 
misfortune,  which  will  induce  the  court  to  grant  a  new 
trial,  where  a  party  appears  by  counsel,  and  is  defaulted, 
with  his  assent,  through  mistake.^ 

§  61a.  Where  the  parties  to  a  suit  agreed  that  it  should 
be  dropped,  in  consideration  of  which  the  defendant  gave 
up  certain  papers;  but,  remaining  on  the  docket,  it  was 
called  for  trial,  and,  the  defendant  not  being  prepared,  a 
verdict  was  given  for  the  plaintiff:  held,  there  should  be 
a  new  trial.* 

§  G2.  A  new  trial  will  not  be  granted  on  the  ground  of 
surprise,  where  the  evidence  in  question  was  not  objected 
to.^  The  objection  in  such  case  is  held  to  be  waived.^ 
(See  chap.  6,  §  24.)  More  especially  where  the  objection 
might  be  obviated  by  further  proof,  if  taken  at  the  trial.^ 

'  Seymour  v.   Elmer,   4   E.    D.  Jackson  v.  Cody,  9  ib.  140 ;  Wait 

Smith,  199.  v.  IMaxwell,  5  Pick.  217 ;  Russell  v. 

2  Leut  V.  Jones,  4  E.  D.  Smith,  Union,  &c.,  1  Wash.  Cir.  440;  Den 
52.  V.  Geiger,  4  Halst.  235. 

3  Dame  v.  Dame,  88  N.  II.  429.  ^  peters  v.  Phcenix,  &c.,  3  S.  & 
♦  Comply   V.   Browne,    3    Brev.     R.  2."). 

240.  '  Jackson  v.  Davis,  5  Cow.  123. 

^  Jackson  v.  Jackson,  o  Cow.  173; 


CH.  XVI.]  SURPRISE.  557 

Thus  a  new  trial  will  not  be  granted,  where  the  objection 
was  first  taken  during  the  summing  up,  that  the  evidence 
ofl'ered  b}-  the  defendant  did  not  maintain  his  pica  of  set- 
oif.^  ISTor  on  the  ground  that  a  separate  set-oft'  was  re- 
ceived in  answer  to  a  joint  claim,  no  objection  being  made 
on  that  ground  at  the  trial.^ 

§  63.  So  a  new  trial  was  refused,  where  a  verdict  was 
found  in  favor  of  a  will,  though  the  only  living  subscrib- 
ing witness  was  not  produced;  the  only  objection  having 
been  such  non-production,  which  was  said  to  be  clearly 
unfounded,  and  not  a  defective  attestation.^  So,  in  reple- 
vin on  a  distress  for  rent,  the  plaintiff"  relied  on  a  tender; 
which  was  objected  to,  on  the  grounds  that  the  precise 
sum  due  was  not  offered,  and  a  deduction  of  the  property 
tax  claimed.  The  plaintiff"  acquiesced  in  the  objection, 
and  in  a  verdict  for  the  defendant.  Held,  he  could  not 
now  raise  the  point,  that  the  tender  of  a  greater  sum  was 
good.*  Kor  will  a  new  trial  be  granted,  where  the  de- 
fendant acquiesced  in  the  submission  of  a  question  rela- 
ting to  his  own  negligence,  as  a  question  of  law  to  the 
court;  upon  an  affidavit  that  he  did  not  expect  the  point 
would  come  up  as  a  question  of  fact,  and  that  he  could 
have  produced  evidence  in  his  favor.* 

§  64.  It  has  been  sometimes  held,  however,  that  a  new 
trial  may  be  granted,  though  the  objection  was  not 
made  at  the  trial,  where,  if  made,  it  could  not  have  been 
obviated.^  So  if  the  evidence  does  not  sustain  the  declara- 
tion, although  not  objected  to  when  offered,  nor  on  that 
specific  ground.  As  where,  in  an  action  for  diverting 
water,  after  the  testimony  was  closed  the  defendant  ob- 
jected, that  upon  the  evidence  either  the  plaintiff"  and  one 

1  Abbott  V.  Parsons,  7  Bing.  5G3.        <  Robinson  v.  Cook,  6  Tann.  336, 

2  Sherman  v.  Crosby,  11  John.  ^  Lewis  v.  Stephenson,  3  Hall, 
70.  248. 

^  Jackson  v.  Christman,  4  Wend.        ^  Maynard  v.  Hunt,  5  Pick.  240. 

S78. 


558  THE    LAW    OF    NEW    TRIALS.  [CE.  XVI. 

A.,  or  A.  alone,  owned  the  mills  in  question.  This  decision 
was  predicated  upon  the  grounds,  that  the  objection  could 
not  have  been  met,  however  made  ;  and  that  the  applica- 
tion was  made,  as  a  case,  not  as  a  bill  of  exceptions.'  So 
though  an  erroneous  charge  was  not  objected  to  at  the 
time ;  especially  if  founded  upon  evidence  which  was 
wrongly  admitted,  though  objected  to.^ 

§  65.  A  new  trial  was  refused,  where  the  plaintiff  re- 
covered a  verdict,  and  the  judge's  report  showed,  that  the 
defendant  had  wholly  failed  to  prove  certain  facts  neces- 
sary to  a  justification  of  the  act  complained  of;  although 
at  the  trial  the  plaintiff  did  not  object  to  the  want  of  such 
proof.^ 

§  Q6.  It  is  ground  of  new  trial,  that  the  plaintiff,  with- 
out previous  notice,  objected  to  the  reading  of  a  deposition, 
because  the  cross-interrogatories  were  not  answered  ;  and 
the  deposition  was  rejected.* 

§  67.  But  the  general  rule  is  laid  down,  that  ruling 
out  a  deposition  on  the  ground  of  irregularity  cannot  in 
any  case  be  regarded  as  a  surprise.^  So  where  a  party, 
who  had  taken  the  deposition  of  a  witness,  excepted  on 
the  trial  to  so  much  of  it  as  was  illegal  evidence,  and  the 
court  excluded  it  from  the  jury;  the  other  party  cannot 
allege,  as  a  ground  for  a  new  trial,  that  he  was  surprised.^ 
So  where  a  certificate  of  discharge  in  bankruptcy,  granted 
by  the  District  Court  of  the  United  States  in  one  State, 
was  offered  in  evidence  as  a  defence  to  an  action  in  another 
State ;  and  rejected,  because  not  authenticated  by  the  judge 
according  to  the  act  of  Congress  in  respect  to  the  authenti- 


'  Rich  V.  Pcnficld,  1  Wend.  380.  »  Bcott  v.  Dclk,  14  Tex.  341. 

Ace.  Archer  ».  Hubbell,  4  Wend.  ^  Smith  ».  Natchez,  &c.,  1  How. 

514,  n.  Miss.  479. 

2  Peoples.  Ilolmos,  5  Wend.  193.  ^  jV[organ   v.  Winston,  2   Swan, 

'  Davies  v.  Morgan,  1  Cr.  &  Jer,  472. 
587. 


CH.  XVI.]  SURPRISE,  559 

cation  of  judgments;  a  new  trial,  asked  on  the  ground  of 
surprise,  was  refused.' 

§  68.  An  affidavit  to  support  an  application  for  a  new 
trial,  on  the  ground  of  surprise,  must  show  merits.^  And 
that  the  surprise  materially  affected  the  verdict.^  And 
that  the  contrary  could  be  proved  on  another  trial.^  So 
also,  not  only  that  the  evidence  adduced  at  the  trial  was 
unexpected,  but  that  the  party  applying  would  have  been 
prepared,  had  it  not  been  for  the  surprise,  with  evidence 
to  contradict  the  evidence  adduced.^  "It  is  necessary  to 
swear  that  you  were  wholly  surprised  by  the  evidence."^ 

§  69.  Where  a  suit  is  managed  by  one  for  several,  his 
affidavit  of  facts  and  of  a  surprise  will  support  a  motion 
for  a  new  trial.^(a) 

§  70.  The  affidavit  for  a  new  trial,  because  of  the  absence 
of  the  party  and  his  witness,  must  state  the  facts  the  wit- 
ness would  prove.^    Also  the  reason  of  his  non-attendance.^ 

§  71.  If  a  new  trial  is  sought  on  the  ground  that  a 
witness  was  mistaken  in  his  testimony,  and,  having  since 
refreshed  his  memory,  will  testify  differently  on  another 
trial ;  the  affidavit  of  the  witness  to  that  effect  should  be 
adduced,  and  the  materiality  of  his  testimony  showu.^'^ 


'  Dorsey  v.  Mawry,  10  S.  &  M.  «  Per  Jervis,  C.  J.,  Roberts  v. 

398.  Holmes,  34  Eiig.  L.  and  Va[.  431. 

2  Medium  v.  Judy,  4  Mis,  8G1.  ^  South  v.  Thomas,  7  Mour.  59 

3  29  Cal.  605.  s  Hjij. 

*  Holly  v.  Christopher,  3  Monr.  ^  Spillars  v.  Curry,  10  Tex.  143. 

14.  '0  Ibid. 

5  Walter  v.  Brandeis,  24  Eng.  L. 
and  Eq.  245. 


(a)  Where  counsel  allege  surprise  as  a  ground  for  a  new  trial,  they 
should  prove  it  by  their  own  and  not  by  their  client's  affidavit.  Schell- 
houfie  V.  Ball,  29  Cal.  605i 


560  TUE    LAW    OF   NEW    TRIALS.  [CH.  XVI. 

§  72.  Upon  a  motion  for  a  new  trial,  where  there  were 
several  defendants,  several  afiidavits  were  introduced, 
tending  to  show  that  some  of  the  defendants  were  never 
served  with  process,  and  never  authorized  the  plea  which 
was  filed.  The  language  of  the  plea  was,  "The  said  de- 
fendants (naming  them)  came  in  their  proper  persons," 
&c.,  and,  after  they  had  heen  served  with  process,  and  a 
replication  was  filed,  the  record  stated  that  "the  defend- 
ants" joined  issue.  Held,  that  the  ohjections  to  the 
verdict,  as  set  forth  in  the  afiidavits,  were  obviated  by 
the  record.^ 

§  73.  Though  the  plaintiff's  evidence  be  a  surprise  upon 
the  defendant,  yet  the  defendant  may  by  his  own  conduct 
preclude  himself  from  all  relief  on  that  ground.  Thus  a 
new  trial  will  not  be  granted  on  this  ground,  where  the 
party  has  been  guilty  of  laches  in  making  his  motion  ;  or 
after  judgment  has  been  entered  ;  nor  where  a  defendant, 
w^ho  examines  his  own  witness  to  disprove  the  plaintiff's 
testimony,  afterwards  agrees  that  written  points  shall  be 
furnished  to  the  court,  but  neglects  to  furnish  them,  in 
consequence  of  which  the  judgment  is  delayed  for  several 
months,  several  motion  terms  having  in  the  mean  time 
elapsed ;  and  does  this,  without  making  any  objection  on 
the  ground  of  surprise,  until  some  three  months  after- 
wards.^ 


'  Wright  V.  Haddock,  7  Dana,        «  Peck  v.  Ililer,  30  Barb.  G55. 
253, 


CII.  XVII.J 


AMOUNT   OF   DAMAGES. 


5G1 


CHAPTER  XVII. 


AMOUNT  OF  DAMAGES. 


1.  General  rule. 

19. 

Nominal  damages. 

2.  Cautiously  applied— remarks 

22. 

Too  small  damages. 

of  judges. 

29. 

Partial  new  trial. 

3.  Exemplary  damages. 

30. 

Remittur,  &c. 

4.  Second  new  trial. 

32. 

Assault. 

5.  Declaration. 

33. 

False  imprisonment. 

6.  Law  and  fact. 

34. 

Negligence. 

8.  Joint  defendants. 

35. 

Libel,  &c. 

9.  Fault  of  party — waiver. 

40. 

Malicious  prosecution 

10.  Slight    excess  —  opinion 

of 

41. 

Trespass  qu.  claus. 

judge,  &c. — dissatisfaction. 

42. 

Watercourse. 

13.  Court  above. 

43. 

Breach  of  promise. 

14.  Calculation  of  amount ;  basis 

44. 

Seduction,  «S;c. 

of  calculation. 

§  1.  A  NEW  trial  may  be  granted  for  excessive  damages.\a) 
Or,  for  the  finding  of  damages  not  justified  by  the  evidence. 
And  a  refusal  to  grant  a  new  trial  in  such  a  case  is  held 
ground  for  reversal  of  judgment.^  On  this  subject  it  is 
remarked :  "  This  is  by  no  means  encroaching  upon  the 
jurisdiction  of  the  jury,  nor  drawing  the  question  to  the 
examination  of  a  diflierent  tribunal  from  that  to  which 
the  constitution  has  referred  it,  for  it  is  not  substituting 
a   different  judgment   in   the   place  of  that  which   has 

•  See  Clerk  v.  Udall,  2  Salk.  649.        2  Pratt  ».  Blakey,  5  Mis.  205. 


(a)  Although  a  new  trial  is  the  legitimate  and  indeed  exclusive  mode 
of  correcting  the  errors  of  a  jury  in  this  important  particular,  it  is 
foreign  from  the  plan  of  the  present  work  to  treat  fully  of  the  copious 
subject  of  damages,  or  to  do  more  than  state  the  general  principles  upon 
which  applications  for  a  new  trial  on  this  ground  have  been  decided,  with 
a  few  miscellaneous  illustrations  applicable  to  particular  injuries  and 
actions.  Not  a  few  of  the  cases  founded  upon  the  allegation  of  a  verdict 
against  evidence  turn  wholly  or  chiefly  upon  the  amount  of  damages. 
36 


5G2  THE    LAW    OF    NEW    TRIALS.  [CII.  XVII. 

been  pronounced,  but  requiring  the  same  jurisdiction  to 
reconsider  that  opinion,  which  appears  to  be  erroneous. 
Without  this  general  power  in  the  court,  injustice  would 
be  done  in  many  cases. "'(«) 

§  2.  But  excess  of  damages  is  a  cause  for  granting  a 
new  trial  which  the  court  will  look  at  with  great  caution.^ 
A  new  trial  on  this  ground  is  said  to  be  rarely  granted 
for  personal  torts.^  So  in  other  cases  judges  have  re- 
marked :  "  Courts  of  justice  have  most  commonly  set 
their  faces  against  them"  (in  actions  for  torts).''  "  I  have 
always  felt  it  very  diiRcult  to  interfere  with  the  verdict 
of  a  jury  upon  a  question  of  amount."''  In  refusing  a 
new  trial,  where  a  verdict  had  been  rendered  for  £2000 
for  malicious  prosecution,  Mansfield,  C.  J.,  said:  "Could 
any  one  say,  that  any  rational  man  of  character  would 
for  £2000  put  himself  in  this  situation?  If  not,  the 
damages  are  not  excessive."^ 

§  3.  It  is  the  prevailing  rule,  though  seriously  ques- 
tioned and  elaborately  opposed  by  eminent  jurists  and 

'  Per  Lord  Kcnyon,  Duberley  c.        »  Per  "Wilmot,  C.  J.,  Huckle  v. 

Gunniiiir,  4  T.  R.  6ol.  Money,  3  Wils.  205. 

2  CooTv  ij.  Hill,  3  Sandf.  341.  See  ^  Per  Cresswell,  J.,  Smith  v. 
Cliisvers  v.  Lambert,  Barnes,  229  ;  Woodfine,  1  Com.  B.,  N.  S.  G61. 

1  Mod.  2  ;  Torre  v.  Summers,  2  N.  ^  Hewlett  v.  Crucliley,  5  Taun. 
&  McC.  2G7.  277. 

3  Per  Lord  Mansfield,  Gilbert  v. 
Burtensliaw,  Cowp.  230. 

(a)  Where  there  is  no  rule  of  law  regulating  the  damages,  and  the 
amount  does  not  depend  on  computation,  the  judgment  of  the  jury  is  to 
govern,  unless  the  damages  are  so  excessive  as  to  warrant  the  belief  that 
the  jury  must  have  been  influenced  by  partiality  or  prejudice,  or  have 
l)cen  misled  by  some  mistaken  view  of  the  merit.s.  St.  Paul  v.  Kuby,  8 
Miu.  ir)4.  In  a  foreclosure  action,  where  there  is  a  counter-<;laim  upon  a 
covenant  of  seisin,  the  question  of  damages  is  for  a  jury.  Hall  v.  Gale, 
20  Wis.  292.  A  new  trial  will  not  be  granted  for  an  erroneous  instruction 
as  to  the  measure  of  damages,  if  it  appears  by  the  bill  of  exceptions  that 
the  damages  assessed  were  not  too  great.  Couillard  v.  Duncan,  G  Allen, 
440. 


CH.  XVII.]  AMOUNT   OF   DAMAGES.  563 

commentators,  that  exemplary  damages  may  sometimes  be 
properly  awarded.^  Thus  a  verdict  for  $100  actual  dam- 
ages and  $1000  exemplar}^  damages  was  held  good.^  So, 
in  an  action  for  entering  the  plaintift''s  close  and  driving 
off  his  hogs,  though  proved  to  have  been  worth  but  $25, 
a  verdict  for  $100 ;  on  the  grounds  of  the  invasion  of  the 
plaintiff's  premises,  the  vexation  to  his  feelings,  depriva- 
tion of  his  property,  its  value,  and  "  smart  money,"  or 
exemplary  damages.^  But  a  verdict  was  set  aside  by  the 
court  above,  for  a  charge,  in  an  action  of  tres[)ass,  that, 
if  the  jury  should  believe  the  plaintiff  entitled  to  exem- 
plary damages,  "tlie  law  left  it  to  their  discretion  to  say 
what  the  amount  should  be,  and  they  could  find  any 
amount  they  thought  proper,"  within  the  limits  of  the 
declaration.*  And,  in  general,  where  it  is  plain,  from  the 
amount  of  the  verdict,  that  the  jury  have  given  exem- 
plary damages  where  none  should  have  been  allowed,  the 
verdict  will  be  at  once  set  aside.^(a) 

§  3«.  In  general,  where  there  is  no  certain  measure  of 
damages,  the  court  will  not  disturb  the  verdict,  except 
for  prejudice,  passion,  or  corruption  in  the  jury,  and 
where  the  verdict  is  palpably  against  evidence."     Or,  as  is 


1  McGeliee  v.  Sliafer,  9  Tex.  20.  Mis.  354  ;  Lang  v.  Hopkins,  10  Geo. 

2  Pendleton  v.  Davis,  1  Jones,  37 ;  Barnette  v.  Hicl<s,  6  Tex.  352; 
98.  Cook  V.  Garza,  9  ib.  358  ;  Goetz  v. 

3  Clark  V.  Bales,  15  Ark.  452.  Ambs,  27  Mis.  28  ;  Gilbert  v.  Bur- 
*  Bryan  v.  Acee,  27  Geo.  87.  tenshaw,  Cowp.  230  ;  Sargent  v. 
5  Beveridge  v.  Welch,    7    Wis.  Deniston,  5  Cow.  106;   Payne  v. 

465.  The  Pacific,  &c. ,  1  Cal.  33  ;  George 

•  6  Goodall  D.  Thurman,  1  Head,  v.  Law,  ib.  363  ;  Allen  v.  Blunt,  2 

209  ;    Danville,  &c.  v.  Stewart,  2  W.  &  M.  121 ;  Aiken  v.  Bemis,  3 

Met.  (Ky.)   119;  Smith  v.  Wood-  ib.  348;  Carr  ».  Gale,  ib.  38.     But 

fine,  1   Com.  B.  659;  Bircliard  v.  see  Josey  v.  Wilmmgtou,  &c.,  11 

Booth,  4  Wis.  67;  Treanor  ».  Don-  Rich.    390;    Parker    v.    Lewis,    1 

ahoe,  9  Cush.  228  ;  Sexton  ».  Brock,  Hemp.  72. 
15  Ark.  345 ;  Wells  b.  Sawyer,  21 

(a)  Whether  a  trespass  was  committed  under  circumstances  of  aggra- 
vation, is  for  the  jury,  and  an  instruction  requiring  them  to  assess  vin- 
dictive damages  is  erroneous.     Hawk  v.  Ridgway,  33  111.  473. 


564  THE   LAW    OF   NEW    TRIALS.  [CH.  XVII, 

sometimes  said,  where  the  damages  found  by  a  jury  de- 
pend on  facts,  the  court  will  not  interfere.'  In  other 
cases  the  proposition  is  laid  down,  that  the  power  to 
grant  new  trials  will  be  applied,  when  the  damages  are 
either  so  large  or  so  small  as  to  force  upon  the  mind 
of  every  one  acquainted  with  the  case  the  conviction, 
that  the  jury  have  acted  under  the  influence  of  a  per- 
verted judgment.- 

§  4.  A  second  new  trial  has  been  refused  for  excess  of 
damages.3(a)  So  a  new  trial  has  been  refused,  where  upon 
a  second  trial  the  same  damages  were  given  as  on  the 
first.*  So,  in  a  late  case,  by  means  of  a  railroad  collision 
a  child  six  years  old  was  injured  as  follows.  Her  skull 
was  fractured  back  of  the  ear,  and  the  bone  pressed  in 
upon  the  pupil  of  the  eye,  causing  a  visible  and  perma- 
nent deformity.  Whether  her  sight  or  health  was  affected, 
did  not  distinctly  appear.  Six  years  afterwards,  when 
the  case  was  tried,  no  more  serious  results  had  appeared, 
since  the  first  healing.  The  mind  and  sight  were  not 
seriously  afl:ected ;  nor  had  there  been  any  epilepsy  or  fits. 
The  defendant  corporation  had  paid  the  physicians.  Two 
verdicts  had  been  rendered  for  $7000.  The  first  was 
set  aside  for  errors  of  law.  Held,  the  last  verdict  should 
stand.^ 

§  5.  That  judgment  was  rendered  for  a  larger  sum  than 
that  claimed  in  the  complaint,  is  suflicient  ground  for  a 
new  trial. '^     So,  if  the  evidence  does  not  sustain  the  dec- 

'  Rice  V.  Sims,  8  Rich.  416.  *  Clerk  v.  Udall,  3  Salk.  649. 

2  Clapp  ('.  Hudson,  ttc,  I'J  Barb.  ^  Macon,  &c.  v.  Winn,  20  Geo, 
461.  250. 

3  Chambers  v.  Robinson,  1  Str,  "^  Roberts  v.  INIuir,  7  Ind,  544. 
691. 

(a)  Upon  the  question  whether  a  verdict  is  excessive,  if  it  concurs 
with  a  previous  one,  unless  clearly  shown  to  be  excessive,  it  will  not  be 
set  aside.     Russ  v.  War  Eagle,  14  Iowa,  363. 


en.  XVII.]  AMOUNT   OF   DAMAGES.  565 

laration,  the  verdict  will  be  set  aside,  although  upon  the 
evidence  alone  the  damages  would  not  be  excessive.  Thus 
the  complainant  set  forth  a  contract  to  pay  him  a  specific 
remuneration  (the  use  of  two  negroes),  for  services  to  be 
rendered,  and,  in  case  of  failure  to  do  so,  to  pay  him  $300. 
He  proved  the  first  part  of  the  contract,  but  failed  to 
prove  the  other ;  and  he  proved  also  that  the  value  of  the 
remuneration  promised  was  $300;  for  which  sum  the  jury 
found  a  verdict,  and  the  court  below  rendered  a  judgment 
thereon.  The  court  above  held,  that,  as  the  alternative 
promise  was  not  proved,  the  verdict  was  without  evidence 
to  support  it,  and  reversed  the  judgment.'  But  a  new 
trial  was  refused,  though  on  a  writ  of  inquiry  after  de- 
fault the  jury  assessed  the  damages  by  the  sum  under- 
written in  the  policy  declared  on,  without  further  evi- 
dence.^(c() 

§  6.  Where  it  is  the  duty  of  the  court  to  determine 
the  amount  of  damages,  and  the  judge  submits  the  matter 
to  the  jury,  who  decide  correctly,  a  new  trial  will  not  be 
granted.^ 

§  7.  Although,  if  a  jury  ask  what  amount  of  damages 
will  carry  costs,  there  is  no  reason  why  the  judge  should 
not  inform  them ;  yet  their  having  given  a  verdict,  in 
ignorance  that  it  will  not  carry  costs,  is  no  reason  why, 
after  an  application  for  a  certificate,  which  implies  that  the 
verdict  is  recorded,  the  verdict  should  be  disturbed.^(6) 

'  McGreal  v.  Wilson,  9  Tex.  426.        ^  Hathaway  v.  Crosby,  5  Shep. 
2  Thellusou  V.  Fletcher,  1  Doug.     448. 
315  *  Kilmore  v.  Abdoolah,  3  Hurl. 

&  Nor.  956. 

(a)  Under  the  (Ind.)  Code,  a  new  trial  will  not  be  granted,  on  the 
ground  that  the  plaintiff  has  recovered  larger  damages  than  were  de- 
manded in  his  writ.  Webb  v.  Thompson,  23  Ind.  428 ;  Raymond  v.  Wil- 
liams, 24  ib.  416. 

{&)  The  jury  having  found  a  verdict  for  five  guineas,  in  an  action  for 
a  trifling  assault,  evidently  acting  upon  information  given  to  them  by 


566  THE   LAW    OF   NEW    TRIALS.  [ciI.  XVII. 

§  8.  In  tlic  case  of  Gregory  v.  Slowman  (1  Ell.  &  Bl, 
369),  Lord  Campbell,  C.  J.,  suggested  the  point  as  a  doubt- 
ful one,  whether  a  verdict  against  two  defendants  could 
be  set  aside,  on  the  ground  that  the  damages  were  exces- 
sive as  to  one  of  them  only,  or  whether,  on  the  other 
hand,  as  claimed  for  the  plaintiff, "  the  measure  of  damages 
ought  to  be  the  sum  which  ought  to  be  awarded  against 
the  most  guilty." 

§  9.  It  is  held  that  a  verdict  will  not  be  set  aside,  where 
the  excess  is  caused  by  the  defendant's  own  fault.^  Or 
where  judgment  is  rendered  against  a  defendant  for  a 
slight  amount  too  much,  if  he  appears  by  design  or  care- 
lessness to  have  contributed  to  the  result.-(«)  Or  where 
an  improper  deduction  has  been  made  from  the  plaintiiFs 
damages,  if  he  is  satisfied.^  But,  in  an  action  for  injury 
to  the  nervous  system  sustained  by  a  railroad  collision, 
the  damages  were  £2600.  It  appeared  that  the  plaintiif 
was  advised  by  physicians  to  abstain  from  his  business — 
that  of  a  barrister — for  two  years,  but  did  not  follow  that 
advice.  In  overruling  the  motion  for  a  new  trial,  Erie, 
C.  J.,  said,  "It  is  impossible  for  any  one  to  say  posi- 
tively whether,  if  the  plaintiff  had  acted  on  the  advice, 
the  depression  of  mind  resulting  from  that  circumstance 
might  not  have  been  more  injurious  than  his  continuing 
in  his  work."^ 

•  Brown  v.  Tanner,  1  Car.  &  P.  3  Lucy  v.  Bnndy,  9  N.  II.  208. 

Gol.  *  Saunders  ».  The  London,  &c., 

2  Billingsley  v.  Groves,  5   Ind.  8  Com.  B.— J.  Scott,  N.  S.  887. 
553. 

the  plaintiff's  counsel,  that  a  verdict  for  less  would  not  give  the  plaintiff 
her  costs;  the  court  granted  a  new  trial  without  terms.  Poole  v.  "Whit- 
comb,  12  C.  B.  (N.  S.)  770. 

(a)  AVhere  the  defendants,  upon  the  trial,  admit  that  the  amount 
claimed  is  correct,  if  anything  is  due;  the  court  will  not  grant  a  new 
trial,  upon  the  suggestion  that  the  evidence  does  not  warrant  the  I'ccov- 
ery  of  so  large  au  amount.    Kowe  v.  Smith,  10  Bosw.  268. 


CH.  XVII.]  AMOUNT   OF   DAMAGES.  567 

§  10.  A  verdict  will  not  be  set  aside,  merely  because 
higher  damages  were  assessed  than  the  court  would  have 
given. ^(r<)  Unless  the  court  are  satisfied  that  the  jury  either 
were  actuated  by  some  improjier  motive,  by  partiality, 
prejudice,  passion,  or  corruption,  or  proceeded  on  some 
erroneous  principles  of  assessment.^  Or  are  clearly  con- 
vinced the  damages  are  too  great.^  More  especially  where 
there  is  no  certain  measure  of  damages.'*  Or  where  the 
verdict  violates  no  rule  of  law.^  Or  there  is  only  a  slight 
excess.^ 

§  11.  As  in  cases  of  motion  for  a  new  trial,  upon  the 
ground  that  the  verdict  is  against  evidence^  generally;  the 
prevailing  rule  is,  that  a  new  trial  will  not  be  granted  for 
excessive  damages,  where  the  judge  is  satisfied  with  the 
verdict.'^  But,  on  the  other  hand,  the  dissatisfaction  of 
the  judge  is  not  regarded  as  conclusive  in  favor  of  a  new 
trial.  Thus  the  verdict  was  sustained,  though  the  judge 
reported  the  damages  to  be  very  excessive.^X^) 

'  Chenowitb.  v.    Hicks,    5    Ind.  Lang  v.  Hopkins,  10  Geo.  37;  Fish 

234.     See  Blanchard  v.  Morris,  15  v.  Roseberry,  22  111.  288. 
111.  35.  ^  Steppaclier  v.  Reneau,  25  Miss. 

2  Creed  v.  Fisher,  26  Eng.  Law  114. 

and  Eq.  384 ;    Boyce  v.  California        ^  Milton  v.  Blackshear,  8  Flori. 

Stage  Co.,  25  Cal.  4G0 ;    Reuck  v.  IGl. 

McGregor,  3  Vroom,  70  ;  Aldrich        ^  Tullidge  v.  Wade,  3  Wils.  18 

v.    Palmer,  24   Cal.  513;   Ross   v.  Bennett  v.  Alcock,  2  T.  R.  166 

Innis,    35    111.    487  ;    Kennedy   v.  Rcdshaw  v.  Brooks,  2  Wils.  405 

North,  36   Mis.  351;   McCarty   v.  Britton  v.  South,  &c.,  3  Hurl.  & 

Fremont,  23  Cal.  196.  N.  963. 

3  Woodson  V.  Scott,  20  Mis.  272.        «  Sharpe  v.  Brice,  2  W.  Bl.  942. 
*  Jacobs  a.  Bangor,  4  Shep.  187; 

(a)  A  verdict  will  not  be  disturbed,  in  an  appellate  court,  on  the 
ground  of  excessive  damages,  where  it  appears  only  doubtful  whether 
they  are  too  l^rge.     New  Orleans  v.  McBride,  38  Miss.  32. 

(&)  In  an  action,  claiming  special  damages  for  non-delivery  of  goods 
within  a  reasonable  time,  the  defendants,  admitting  their  negligence  to 
have  been  the  cause  of  the  non-delivery,  paid  £10  into  court.  The  judge 
left  it  to  the  jury,  whether  the  £10  was  a  sufficient  compensation  for  the 
pecuniary  loss,  pointing  out  that  on  the  evidence  there  was  no  pretence 
for  saying  that  the  plaintiff  had  sustained  any  substantial  loss.     The 


568  THE   LAW    OF   NEW    TRIALS.  [CH,  XVII. 

§  12.  In  a  lending  English  case  of  crim.  con.,  the  de- 
fendant oflered  evidence,  tending  to  show  gross  negligence 
or  inattention  on  the  part  of  the  husband  in  reference  to 
the  conduct  of  his  wife.  Lord  Kenyon  intimated  to  the 
jury,  that  the  evidence  sustained  this  ground ;  but  they 
returned  a  verdict  for  £5000.  A  motion  for  a  new  trial 
was  overruled,  although  Lord  Ivenyon  remarked  that  the 
damages  were  much  too  large,  and  that  he  should  have 
been  satisfied  with  merely  nominal  damages.^ 

§  13.  It  is  sometimes  held,  that,  upon  a  rule  for  a  new 
trial  for  excessive  damages,  the  decision  of  the  court 
which  tried  the  cause  is  conclusive.^  So,  in  North  Caro- 
lina, the  Supreme  Court  refused  to  reverse  a  judgment  of 
the  Superior  Court  and  order  a  new  trial,  because  of  the 
alleged  finding  of  excessive  damages  by  the  jury,  or  the 
refusal  of  the  court  to  set  aside  that  finding.^  But  the 
qualified  rule  is  more  generally  adopted,  that  a  verdict 
will  not  be  set  aside  for  this  cause  by  the  court  above, 
unless  in  case  of  partiality,  corruption,  &c.' 

§  14.  The  application  for  a  new  trial  on  the  ground  of 
excessive  damages  is  of  course  more  favorably  received, 
where  the  jury  have  disregarded  some  definite  basis  of 
calculation,  than  where  from  the  nature  of  the  case  the 
damages  are  left  to  their  discretion.     To  the  former  class 

'  Duberlpy  «.  Gunning,  4  T.  K.  *  Cropsey    v.    Murphy,    1    Ililt. 

Ool.  126;    Blum    ?,'.    Iliirgins,  lb.    147; 

2  Young  V.  Ilairston,  3  Dev.  55.  Lester  v.  Baruett,  33  Mis.  584. 

3  McRae  v.  Lilly,  1  Ired.  118. 


jury  liaving  given  a  verdict  for  £5,  beyond  the  £10;  held,  the  amount 
of  damages  had  been  properly  left  to  them,  and,  although  the  court 
might  think  the  verdict  wrong,  and  £10  enough,  yet,  the  damages 
recovered  being  less  than  £20,  the  verdict  could  only  be  disturbed  on 
the  ground  of  its  being  perverse  ;  and,  as  the  jury  had  not  disobeyed 
any  directions  of  the  judge,  the  court  could  not  disturb  it.  Adams  v. 
Midland,  7  Hurl.  &  Nor.  1034. 


en.  XVII.]  AMOUNT   OF   DAMAGES.  569 

of  cases  belong  actions  on  contracts,  or  for  torts  done  to 
property,  the  value  of  which  may  be  ascertained  by  evi- 
dence; in  which  therefore  a  new  trial  will  be  awarded, 
if  the  finding  be  contrar}^  to  the  evidence.^  It  is  ground 
of  new  trial,  that  mistakes  were  made  by  the  jury  in  their 
calculations.^  But,  on  a  motion  to  set  aside  a  verdict  for 
excessive  damages,  it  is  not  allowable  to  prove,  by  the 
jurors,  their  mode  of  computation.'  And  if  by  any  calcu- 
lation, which  the  evidence  will  reasonably  support,  the 
verdict  can  be  sustained  as  to  amount,  a  new  trial  should 
not  be  granted,  whether  it  be  the  same  calculation  made 
by  the  jury  or  not.\a)  As  where  the  judge  of  the  court 
below  certified  that  he  had  made  a  laborious  calculation, 
which  resulted  in  a  larger  amount  than  was  found  by 
the  jury.'  Nor  when  the  damages  appear  to  have  been 
assessed  neither  at  the  highest  nor  the  lowest  estimate  of 
witnesses,  and  there  is  nothing  indicating  that  the  jury 
must  have  acted  under  the  influence  of  passion  or  undue 
bias.^ 

§  15.  In  some  cases,  the  plaintiff  ought  not  to  be  held 
to  the  most  explicit  or  exact  proof  of  the  amount  of  his 

•  Lang  V.  Hopkins,  10  Geo.  37.  ^  Hovey  v.  Luce,  31  Maine,  346. 

See  Fish  v.  Roseberry,  22  111.  388  ;  «  Dacy  v.  Gay,  16  Geo.  203. 

Southwestern   Railroad  v.  Paulk,  5  gndling  c.Darrell,  17  Geo.  141. 

24  Geo.  356.  ^  Gilbert  v.  Woodbury,  9  Shep. 

2  Killen  v.  Sistrunk,  7  Geo.  283.  246. 
See  Southwestern,  &c.   v.  Paulk, 
24  Geo.  356. 

{a)  In  a  suit  to  recover  a  slave  or  her  value,  it  is  no  ground  for  a  new 
trial,  that  the  jury  assessed  the  price  of  the  slave  at  $8.5  more  than  her 
value,  the  judgment  being  in  the  alternative,  for  the  slave  or  her  value. 
Cochrane  v.  Winburn,  13  Tex.  143.  Where  the  verdict,  in  an  action  to 
recover  for  legal  services  was  for  a  much  larger  sum  than  that  sustained 
by  the  weight  of  evidence,  the  judgment  of  the  court  below  was  reversed. 
Packard  v.  Bates,  38  111.  40.  The  right  to  recover  interest,  in  an  action 
for  money  had  and  received,  is  a  question  of  law.  A  jury  has  the  right 
to  pass  upon  the  question,  only  where  it  may  be  charged  as  damages. 
Robinson  v.  Corn  Exchange,  1  Rob.  14. 


570  THE   LAW    OF   NEW    TRIALS.  [CII.  XVII. 

damages,  and  the  jury  arc  warranted  in  exercising  a 
liberal  discretion.  Thus,  in  an  action  for  infringement  of 
a  patent,  there  was  no  proof  of  the  cost  of  the  manufacture, 
or  of  the  sale  price,  but  it  was  in  evidence  that  sales  were 
hi^dily  profitable,  and  that  the  defendants  had  manu- 
factured and  sold  very  large  quantities.  No  proof  was 
oftered  by  the  defendants  in  regard  to  the  amount  of  their 
manufacture  or  sales,  nor  of  the  value  of  the  article  in  the 
miirkct.  Held,  a  verdict  for  the  plaintift'for  $2000  should 
not  be  set  aside.'  So,  though  the  damages  appear  greater 
than  the  court  would  have  given,  if  they  depend  on  sun- 
dry matters  of  account,  which  the  evidence  does  not  ena- 
ble the  court  to  state  with  precision.2(a) 

§  16.  A  new  trial  was  granted,  where  the  plaintiff  sued 
for  a  l^alance  of  $300  on  an  account  for  $700,  admitting 
the  payment  of  $400,  and  then  proved  only  about  $600  of 
the  account,  and  the  jury  brought  in  a  verdict  for  the 
whole  balance.^  So  in  case  of  a  verdict,  finding  the 
value  of  a  chattel  to  be  $45,  and  assessing  $100  for  the 
use  or  detention  of  it  from  the  commencement  of  suit.* 
Or  a  verdict,  in  trover,  for  the  full  value  of  slaves,  where 
the  plaintitt"  has  only  a  life-estate.'*  So  where  the  price  of 
three  slaves,  sold  with  warranty  of  soundness,  was  $2550; 
and,  in  an  action  for  a  breach  of  warranty  as  to  two  only, 
the  damages  were  $2200.^  So  where,  in  an  action  for  the 
rents  and  profits  of  land,  before  recovered,  but  which  the 

>  Stephens  ti.Felt,  2  BlatcU.  C.  C.  '  Sclmette  v.  Sutter,  23  :Mis.  240. 
37^  39.  ^  Morris   v.   Thomson,    1    Rich. 

2  Douglas  V.  Chapin,  26  Conn.     65. 

7g.  G  In^^raham  v.  Russell,  3  How. 

3  Allen  V.  Brown,  11  Tex.  520,      Miss.  304. 


(a)  In  questions  of  damages  for  taking  gold  from  a  mining  claim,  the 
plaintiff  must  necessarily  find  great  difficulty  in  showing  the  amount 
taken,  and  therefore  the  defendants  cannot  complain  of  excessive 
damages,  if  they  do  not  show  the  correct  amount  of  gold  taken  out  by 
them.     Antoine  Co.  v.  Ridge  Co.,  23  Cal.  219. 


CH.  XVII.]  AMOUNT   OF   DAMAGES.  571 

defendant  retained  two  or  three  montlis  after  sueli  re- 
covery, the  verdict  was  for  more  than  $200,  although  it 
appeared  in  evidence  that  the  annual  value  did  not  exceed 
$200.^  So  where,  in  an  action  for  harboring  and  concealing 
slaves,  founded  upon  the  loss  of  their  services  for  six  days 
and  certain  expenses  of  recovering  them,  which  could  not 
according  to  the  evidence  exceed  six  hundred  dollars,  the 
verdict  was  for  twelve  hundred ;  a  new  trial  was  granted 
at  the  cost  of  the  defendant.^ 

§  17.  Damages  in  a  suit  for  the  wrongful  taking  of 
property  will  not  be  regarded  as  excessive,  merely  because 
they  greatly  exceed  the  price  obtained  by  a  sale  of  the 
property.  Thus  a  new  trial  was  refused  in  an  action  of 
trover,  where  the  damages  were  three  times  the  amount 
for  which  the  property,  being  machinery  in  a  factory,  sold 
at  auction  at  sherilf 's  sale.^ 

§  18.  It  is  ground  of  new  trial,  if  the  jury  find  arbitrary 
damages,  instead  of  an  increased  rent,  which  by  agreement 
is  the  measure  of  damages.^  But  not,  in  case  of  a  penalty, 
where  the  verdict  is  for  a  less  sum.^  Or  for  stipulated 
damages.^ 

§  18a.  Where  the  criterion  of  damages  is  fixed  by  law, 
if  the  jury,  after  judgment  by  default,  assess  too  great  an 
amount,  the  court  should  set  aside  the  verdict.^  So  where 
the  rule  of  damages  is  fixed  by  statute,  and  the  verdict  is 
evidently  the  result  of  a  mistaken  view  of  the  rule  applica- 
ble to  the  facts.8  'Bwt^  on  the  other  hand,  where  a  statute 
provides  expressly  that  the  jury  in  cases  under  the  statute 

1  Lelire  v.  Sumter,  3  Brev.  19.        346  ;  Dennis  v.  Cummius,  3  John. 

2  Jones  V.  Van  Zant,  2  McLean,     Cas.  297. 

611.  6  Hasbrouck'U.  Tappen,  15  John. 

3  Aycr  V.  Bartlett,  9  Pick.  156.       200. 

*  Farraut  v.  Olmins,  3  B.  &  Aid.        ?  Wliite  v.  Green,  3  Monr.  lo5. 
692.  ^  Todd  v.  Boone  County,  8  Mis. 

5  Astley  V.  Weldeu,  2  B.  &  P.     431. 


572  THE    LAW    OF   NEW    TRIALS.  [CH.  XVII. 

shall  "be  the  sole  judges  of  the  damages  sustained;"  the 
courts  have  no  authority  to  set  aside  a  verdict,  for  excess 
in  the  damages.^ 

§  19.  It  is  held  that  a  new  trial  will  not  be  ordered, 
merely  for  a  failure  to  assess  nominal  damages,^  when 
there  is  a  mere  technical  right  to  recover.^  ]More  espe- 
cially when  substantial  justice  has  been  done.* 

§  20.  In  an  action  for  cutting  down  one  hundred  and 
eighty-two  timber  trees,  held  not  error  for  the  judge  to 
leave  it  to  the  jury,  whether  the  party  was  entitled  to 
more  than  nominal  damages,  and,  if  so,  how  much.^  Nor, 
on  the  other  hand,  in  an  action  for  false  imprisonment,  to 
express  an  opinion  that  more  than  nominal  damages 
should  be  given,  where  the  question  of  amount  is  fully 
left  to  the  jury.^ 

§  21.  In  general,  the  court  will  not  grant  a  new  trial, 
to  enable  the  plaintiii'  to  recover  vindictive  damages 
merely.  Otherwise  if  he  is  entitled  to  nominal  damages 
only,  and  the  action  is  brought  to  try  a  question  of  per- 
manent riglit.'^ 

§  22.  It  is  said  in  an  old  case,  "  a  notion  has  prevailed, 
that  where  damages  are  excessive  a  new  trial,  &c.,  may  be 
granted,  but  not  where  damages  are  less  than  they  ought 
to  be,  though  there  is  as  much  reason  for  a  new  trial,  &c., 
in  the  one  case  as  the  other. "^ 

§  23.  A  verdict  will  not   be  set  aside  merely  for  the 

'  Lewis  V.  Black,  37  Miss.  435.  e  Oswald  v.  Kcnncdv,  48  Pcnn. 

2  Patton   V.   Hamilton,    13    Iiul.  9. 

256.  ''  Plumloigh  v.  Dawson,  1  Gilm. 

^  Ilndspcth  p.  Allon,  30  Ind.  105.  544.     See  Johnson  v.  Wccdnian,  4 

»  The  State  v.  i\Iiller,  5  Blackf.  Scam.  495 ;  Jenny  v.  Delesdernier, 

381.  2  App.  183. 

5  Archibald  v.  Davis,  4   Jones,  **  Tultou   v.   Andrews,    Barnes, 

133.  448. 


CH.  XVII.]  AMOUNT    OF   DAMAGES.  573 

small  amount  of  damages,  however  trifling  it  may  be. 
As  where  the  amount  was  half  a  farthing} 

§  24.  A  new  trial  will  not  be  granted,  on  the  ground 
that  from  the  small  amount  of  damages  the  jury  must 
have  come  to  a  compromise,  unless,  from  the  circum- 
stances of  the  case,  it  is  evident  that  there  has  been  a 
total  refusal  on  the  part  of  the  jurors  to  discharge  their 
duty,  and  the  verdict  is  necessarily  w^holly  inconsistent.^ 

§  25.  A  new  trial  was  refused,  where  the  verdict  was 
for  fifty  dollars,  in  a  case  of  very  great  bodily  injury  by 
being  run  over  with  a  dray  ;  the  plaintiff  being  in  fault, 
but  less  so  than  the  defendant.^ 

§  26.  The  court  refused  to  grant  a  rule  for  a  new  trial, 
on  the  ground  of  the  insufiiciency  of  the  damages,  w^here 
the  jury  had  given  only  one  farthing  damages  in  an  action 
of  trespass  for  taking  the  plaintiff  before  a  magistrate, 
upon  an  unfounded  charge  of  felony,  merely  because  a 
question  of  character  was  involved.^a) 

'  Marsham  v.  Buller,  2  Ro.  R.  ^  Richards  v.  Rose,  24  Eng.  L. 

21 ;  Cro.  Jac.  458.     See  Lord  G— r  and  Eq.  40G. 

V.  Heath,  Barnes,  445  ;  Hay  ward  »  Flanders  v.  Meath,  27  Geo.  358. 

V.  Newton,  2  Str.  940 ;  Barker  v.  *  Apps  v.  Day,  26  Eng.  Law  and 

Dixie,  ib.  1051  ;  Mauricet  v.  Breck-  Eq.  335. 
nock,    2    Doug.    509 ;    Burges    v. 
Nightingale,  Barnes,  230. 


(a)  It  is  no  ground  for  a  new  trial,  in  an  action  for  an  assault  and 
false  imprisonment,  that  the  plaintiff  had  incurred  an  expense  of  7Z.  14s., 
in  procuring  his  discharge  from  custody,  and  the  jury  have  awarded  him 
a  farthing  only.  Bradlaugh  v.  Edwards,  11  C.  B.  (N.  S.)  377.  In  an 
action  against  a  bailee,  for  injury  to  and  destruction  of  goods,  the  jury 
returned  a  verdict  for  the  plaintiff,  with  nominal  damages.  Held,  no 
ground  for  a  new  trial,  that,  according  to  the  evidence,  the  damage,  if 
any,  must  have  been  more  than  nominal,  and  that  there  was  uncontra- 
dicted evidence  of  a  loss  of  goods,  to  the  extent  of  2/.  Mostyn  v.  Coles, 
7  Hurl.  &  Nor.  872. 


574  THE    LAW    OF    NEW    TRIALS.  [CIL  XVII. 

§  27.  The  rule,  against  granting  a  new  trial  on  the 
ground  of  too  small  damages,  in  actions  for  wrongs  or 
injuries,  is  by  no  means  without  cxce[ttions.  More  espe- 
cially where  the  circumstances  furnish  a  reasonably  certain 
measure  of  damages.^  As  where,  in  an  action  for  injury 
caused  by  running  over  the  plaintiti',  the  jury  found  a 
verdict  for  6c/.  damages,  though  the  plaintift'  had  paid  4?. 
10s.  for  necessary  surgical  attendance.^  So  upon  a  writ 
of  inquiry,  in  an  action  for  dilapidations,  two  surveyors 
were  called  on  each  side:  those  called  for  the  plaintiff 
estimated  the  dilapidations,  the  one  at  119/.,  the  other  at 
124/.;  those  called  for  the  defendant  estimated  them,  the 
one  at  63/.  15.^.,  the  other  at  68/.  Verdict  for  36/.  10s. 
The  court  ordered  that  the  inquisition  be  set  aside  with- 
out costs,  unless  the  defendant  will  consent  to  the  verdict 
being  entered  for  63/.  15s.^  So  a  new  trial  was  granted, 
where,  in  an  action  against  a  lessee  for  cutting  down  a 
grove  of  large  oak-trees  which  surrounded  the  buildings, 
evidence  was  furnished,  not  only  of  serious  injury,  but  of 
the  actual  extent  of  the  injury,  and  the  jury  found  only 
nominal  damages.'*  Verdicts  have  also  been  set  aside  on 
this  ground,  in  cases  of  libel,'  slander,^  and  assault.^  Thus 
the  defendant  had  fired  a  gun  loaded  with  buckshot  at 
the  plaintifi",  and  nearly  taken  off  an  arm.  In  an  action 
for  assault  and  battery,  the  jury  gave  a  verdict  for  one 
dollar.  On  motion  for  a  new  trial,  the  court  remarked, 
that  the  jury  had  behaved  shamefully,  and  deserved  the 
severest  reprehension  for  such  glaring  partiality  and  in- 
justice, and  granted  the  motion.^ 

§  28.  In  general,  where  the  damages  are  susceptible  of 

'  Bishop  V.  The  Mayor,  &c.,  7  <  English  c.Clerry,  3  Hill  (S.C), 

Geo.  200.  279. 

2  Tfdd  V.  Douglas,  5  C.  B.  (N.  ^  Lpyi  ^.Milno,  4  Bing.  195. 
S.)  89.J.  ''  Kixcy   v.   Ward,    3    Raud.    52 

3  Weeding  v.  Mason,  3  C.  B.(N.  (authorized  l)y  statute). 

S  )  382.  ^  Baeot  v.  Keith,  2  Bay,  466. 

8  Ibid. 


CH.  XVII.]  AMOUNT   OF   DAMAGES.  575 

compntation,  if  too  small,  the  verdict  may  be  set  asi(le.'(a) 
As,  where,  in  an  action  on  a  warranty,  the  plaintiff's  evi- 
dence was  conclusive,  but  the  jury  found  a  verdict  for  one 
cent  damages.^  So  where,  in  assumpsit  on  the  implied 
warranty  of  the  soundness  of  a  negro,  a  verdict  was  given 
for  the  plaintift',  for  one  dollar.^  So  the  defence  to  an 
action,  brought  to  foreclose  a  mortgage,  was  failure  of 
consideration  as  to  the  notes  secured,  on  the  ground  of 
eviction  from  one  of  the  four  pieces  of  land  purchased, 
with  an  averment,  that  such  piece  of  land  was  worth 
$2000.  The  defendant  introduced  three  witnesses,  one  of 
whom  estimated  the  land  at  $900  to  $1050,  another  at 
$1125,  and  the  third  at  $1200,  which  evidence  was  not 
contradicted  by  the  plaintiff,  nor  the  witnesses  impeached. 
A  verdict  for  $440,  for  breach  of  the  covenants  in  the 
plaintiff's  deed,  was  set  aside  as  contrary  to  evidence.* 
So  where  the  damages  have  been  reduced  by  the  admis- 
sion of  improper  evidence,  this  is  ground  for  setting  aside 
the  verdict.^  In  some  cases,  however,  a  new  trial  has 
been  refused  on  this  ground,  though  there  was  a  manifest 
error  of  computation.  A  strong  case  of  this  nature  was 
where  the  jury  allowed  interest  upon  a  note  only  from 
the  date  of  the  writ,  whereas  it  should  have  been  allowed 
from  the  date  of  the  note ;  and  the  effect  was,  to  reduce 

•  See  Parr  v.  Purbeck,  8  Mod.  «  Wallace   v.  Frazier,   2    N.   & 

194  ;    Earl,   &c.   v.  Sadler,  13  ib.  McC.  516. 

348;  Woodward  v.  Eadcs,  1    Str.  ^  Verdier».  Trowell,  6  Rich.  1G6. 

425  ;  Markham  v.  Middleton,  2  ib.  ■»  Fawcett  v.  Woods,    5   Clarke, 

1259;    Taunton,  &c.   v.   Smith,   9  400. 

Pick.  11  ;  Russell  v.  Ball,  Barnes,  ^  Tutton   u.   Andrews,    Barnes, 

445.  448. 

(a)  In  an  action  to  recover  fees  for  professional  services,  the  only  testi- 
mony as  to  the  value  of  the  services  was,  that  they  were  worth  not  less 
than  a  certain  sum.  Held,  a  verdict  for  a  less  sum  must  be  set  aside. 
Hood  V.  Ware,  34  Geo.  328 ;  Shropshire  v.  Doxcy,  25  Te.\.  113.  So  in 
an  action  on  a  bond,  where  no  evidence  was  given  by  the  defendant ;  a 
verdict  for  only  one-fourth  of  the  debt.  Carwilc  v.  Harvey,  15  Rich.  L. 
314. 


576  THE    LAW    OF   NEW    TRIALS.  [CH.  XVII. 

the  verdict  to  a  sum  which  imposed  the  costs  upon  the 
plaintiff?  So  a  new  trial  was  refused,  in  a  case  of  com- 
putation, for  too  small  damages,  though  the  verdict  was 
contrary  to  the  instructions  of  the  court.^ 

§  28a.  In  an  action  for  an  injury  sustained  upon  a 
railroad,  it  appeared  without  contradiction,  that  the 
plaintiff"  in  consequence  of  the  injury  remained  insensible 
through  the  day ;  that  he  did  not  use  his  feet  or  hardly 
know  that  he  had  any  feet  for  ten  or  twelve  days ;  and 
was  laid  up  nearly  five  months,  and  most  of  the  time 
confined  to  the  house.  A  verdict  for  the  plaintiff*  for  six 
cents  damages  was  on  his  motion  set  aside.^ 

§  29.  "Where  the  damages  are  excessive,  a  new  trial 
may  be  granted,  to  determine  the  damages,  without  open- 
ing the  whole  case.^  So  where  the  jury  find  for  the  plain- 
tiff', and  assess  damages  for  the  detention  of  his  property, 
but  do  not  find  the  value  of  the  property;  the  court  may 
award  a  writ  of  inquiry  to  assess  the  value,  and  not  order 
a  new  trial  in  toto.^ 

§  30.  The  court  may  allow  a  remittitur  of  the  excess  of 
damages  found,  and  overrule  a  motion  for  a  new  trial.^ 
Thus,  even  in  an  action  for  a  personal  injury,  the  sum  to 
be  entered  was  named  by  the  court.''  But,  in  case  of  a 
verdict  for  twenty-five  dollars  more  than  the  evidence 
warranted,  the  court,  apprehensive  that  there  was  culpable 


'  Hager  v.  Weston,  7  Mass.  110.  s  jjey  ^,  Allen,  3  Murpli.  523. 

Ace  Walker  v.  Smith,  1  Wash.  Cir.  ^  Young  v.   Englehard,  1  How. 

202  ;  Bourke  v.  Bulow,  1  Bay,  49.  l\Iiss.  Ifl  ;  Smith  v.  Paul,  8   Port. 

2  Walker  v.  Smith,  4  Ball.  389.  503;  Reasoner  v.  Brown,  19  Ark. 

'  Piobbins  v.  The  Hudson,  &c.,  7  234  ;  Evertson  v.  Sawyer,  2  Wend. 

Bosw.  1.  507  ;  Harry  v.   Watson,    4  T.  R. 

*  Boyd  V.  Brown,  17  Pick.  453  ;  G59,  n.  ;  Branch  v.  Bass,  5  Sneed, 

Bobbins  v.  Townsend,  20  ib.  345;  3GG. 

Harriston  v.  Sale,  G  S.  &  M.  G34.  '  Dillin  v.  Murphy,  3  Sandf.  19. 


CII.  XVII.]  AiMOUNT   OF   DAMAGES.  577 

inattention  or  indifference  on  the  part  of  the  jury,  did 
not  order  a  remittitur,  but  remanded  the  case  for  a  new 
trial. ^  So  if  the  jury  find  a  gross  sum  for  principal  and 
interest,  where  the  plaintiff  is  not  entitled  to  interest, 
and  it  cannot  be  collected  from  the  verdict  what  part  of 
the  sum  was  found  for  interest ;  the  verdict  will  be  set 
aside  and  a  new  trial  ordered,  although  the  plaintiff  offer 
to  release  the  interest.-(rt) 

§  31,  "Where  an  obvious  arithmetical  error,  in  a  discount 
sj^ccially  pleaded,  was  corrected  by  a  jury,  so  that  the  dis- 
count allowed  was  greater  than  that  claimed  by  the  plea, 
the  court  would  not  set  aside  the  verdict.^  But  on  an 
indictment  for  larceny  of  several  articles  of  the  same 
kind,  for  each  of  which  there  is  a  specific  penalty,  if  a 
less  number  be  proved  than  is  laid  in  the  indictment,  and 
the  jury  find  a  general  verdict,  a  new  trial  will  be  granted, 
although  the  attorney -general  oft'ers  to  procure  a  remission 
of  the  penalties  for  all  but  the  articles  proved.^ 

'  lilies  V.  Diercks,  16  Tex.  251.  *  The  State  v.  Herring,  1  Brev. 

2  Lesesue  v.  Grant,  1  Brev.  403.     159. 
^  Richardson  v.  Murraj^,  Cheves, 
11. 

(a.)  In  a  late  English  case,  in  which  the  defendant  had  seized  and 
sold  the  stock  npon  the  plaintiff's  farm,  claiming  under  an  instrument, 
which  was  ruled  to  be  a  bill  of  sale  to  her  by  a  former  occupier  of  the 
stock  then  on  the  farm,  as  security  for  money  advanced  by  her ;  and  the 
plaintiff  had  repeatedly  applied  to  the  defendant  in  vain  for  accounts  of 
his  claim  ;  and  there  was  no  satisfactory  evidence  as  to  whether  the  origi- 
nal debt  was  subsisting;  and  the  sale  included  many  things  which  the 
defendant  must  have  known  were  not  in  the  bill  of  sale  at  all ;  and  there 
were  circumstances  of  great  aggravation  :  it  was  held,  that  it  was  rightly 
left  to  the  jury  whether  they  believed  the  debt  to  be  due,  and  whether 
it  was  due  to  the  assignor  as  executrix,  and  that,  if  not,-  they  should 
find  for  the  plaintiff,  and  it  was  a  proper  case  for  vindictive  damages. 
The  jury  having  given,  beyond  the  full  value  of  the  stock  seized,  more 
than  double  that  value  by  way  of  damages,  the  court  were  reluctant  to 
interfere,  although  they  thought  the  amount  excessive,  and  recommended 
a  compromise.     Thomas  v.  Harris,  3  Hurl.  &  Nor.  961. 

*       37 


578  TUE   LAW    OF   NEW    TRIALS.  [CU.  XVII. 

§  32.  Ill  actions  for  personal  torts,  the  law  does  not 
prescribe  any  defiiiite  rule  of  damages,  but,  from  neces- 
sit}^,  leaves  it  to  the  good  sense  of  the  jury.  Hence  their 
verdict  will  not  be  disturbed,  unless  the  amount  is  so 
large,  as  to  induce  a  reasonable  person,  upon  hearing  the 
circumstances,  to  declare  it  outrageously  excessive,  or 
as  to  suggest,  at  the  first  blush,  passion,  or  prejudice,  or 
corruption.^  The  court  will  not  set  aside  a  verdict  for 
excessive  damages,  in  tres-pass  against  the  2>erso7i,  unless 
they  are  so  extravagant  as  to  induce  a  suspicion  of  im- 
proper conduct.-  Thus  a  verdict  was  sustained  for  the 
sum  of  £200  for  a  blow  on  the  face,  causing  a  black  eye, 
the  court  remarking,  "The  plaintift' has  been  used  unlike 
a  gentleman  by  the  defendant  in  striking  him,  with- 
holding his  property  (which  was  a  turtle,  delivered  by 
mistake  to  the  defendant,  and  demanded  by  the  plaintitf), 
and  insisting  upon  his  privilege,  all  of  them  tending  to 
provoke  him  to  seek  his  revenge  in  another  way  than  by 
law."^  So  in  an  action  for  trespass,  in  wrongfully  entering 
the  plaintiff's  office,  and  there  making  a  violent  assault 
upon  the  plaintiff's  clerk,  it  appeared  that  the  defendant 
went  there  for  the  purpose  of  demanding  payment  of  a 
small  debt,  with  the  malicious  intent  of  provoking  a 
quarrel  with  the  clerk,  in  case  he  was  not  paid ;  and  that 
he  wounded  the  clerk  in  pursuance  of  this  intention. 
Held,  a  verdict  of  $400  damages  was  not  excessive.*  But 
a  new  trial  will  be  awarded,  where  the  verdict  shows  a 
want  of  sound  discretion,  or  passion,  partiality,  prejudice, 
or  corruption.^  Thus  a  new  trial  was  awarded  where 
$2000  were  given  for  assault  with  a  whip."  So  in  case 
of  a  verdict  for  $9000  for  assault  and  false  imprisonment, 
the  damages  being  held  unreasonable  and  outrageous, 
such  as  must  strike  every  one  at  first  blush  as  enormously 

'  Wheaton  v.  North,  36  Cal.  590.        3  Grey  «.  Sir  Alexander  Grant, 

2  Bell  V.  Morrison,  37  IVIiss.  G8  ;  3  Wils.  352. 
Benson  v.  Frederick,  3  Burr.  1845 ;        »  Walker  -y.  Wilson,  8  Bosw.  586. 
Ducker  v.   Wood,   1    T.   R.    277;        s  Coffiu  «.  Coffin,  4  Mass.  1. 
Clianellor  v.  Vaughn,  3  Bay,  410.  ^  Goetz  v.  Ambs,  22  Mis.  170. 


en.  XVII.]  AMOUNT    OF   DAMAGES.  579 

disproportioned  to  the  case  proved.*  So,  in  an  action  for 
assault,  a  verdict  for  £200  was  set  aside.^  So,  where  no 
special  injury  was  shown,  a  verdict  of  $1000  for  ejecting 
a  passenger,  who  refused  to  pay  his  fare,  at  a  place  some 
distance  from  tlie  station.^ 

§  33.  The  same  rule  against  a  new  trial  is  adopted  in 
actions  for  false  imprisonment.*  As  in  case  of  a  verdict 
for  £300;^  or  for  £3000.^  So,  where  the  imprisonment 
was  under  an  illegal  warrant  from  Lord  Halifax,  Secretary 
of  State,  a  verdict  for  £1000.^  But  a  verdict  for  £2000 
has  been  set  aside.*  So  a  verdict  for  $9000.^  '  So  a  verdict 
for  £100,  where  the  evidence,  in  the  view  of  the  court, 
would  have  sustained  a  plea  of  accord  and  satisfaction.*" 

§  34.  In  an  action  for  a  personal  injury  arising  from 
indisputable  negligence,  the  injury  being  permanent  and 
recovery  apparently  hopeless,  the  court  will  not  reduce 
the  damages,  if  the  judge  be  not  dissatisfied  with  the 
verdict."  Thus  where  a  pole,  used  as  a  toll-gate  upon 
a  turnpike  road,  was  so  insecurely  fixed  as  to  form  an 
obstruction  to  the  road,  and  a  passenger  travelling  in  the 
stage-coach  along  the  road  had  his  thigh  badly  fractured 
by  the  upsetting  of  the  coach  in  the  night-time,  occasioned 
by  the  running  of  the  horses  and  coach  against  the 
pole,  in  consequence  of  the  driver's  failing  to  see  the 
obstruction ;  held,  in  view  of  all  the  evidence,  and  the 
serious  if  not  irreparable  injury  done  to  the  plaintiff,  a 
verdict  of  $4000  in  his  favor  against  the  turnpike  company 

'  McConnell    v.    Hampton,    13  '^  Fabrigas  v.  Mostyu,  2  "W.  Bl. 

John.  334.  929. 

2  Goldsmith  v.  Softon,  3   Anst.  "<  Beardmore    v.    Carrington,    2 
808 ;   Jones  v.  Sparrow,  5  T.  R.  Wils.  344. 

257.  s  Ash  V.  Ash,  Comb.  357. 

3  Terre  Haute,  «fcc.  v.  Vanatta,        ^  McConnell    t.    Hampton,     12 
'jl  111.  188.  John.  234. 

»  Huckle  V.  Money,  2  Wils.  205.         '»  Price  v.  Severn,  7  Bing.  316. 
5  Leeman«.  Allen,  2  Wils.  160.         "  Britton  v.  South,  &c.,  3  Hurl. 

«fc  Nor.  903. 


580  THE   LAW    OF   NEW    TRIALS.  [CH.  XVII. 

was  not  excessive.^  So  in  an  action  by  an  administratrix 
to  recover  damages  for  the  killing  of  the  intestate,  her 
liusband,  by  the  wilful  neglect  of  the  defendant,  the  facts 
proved  showed  that  the  killing,  although  not  intentional, 
was  the  result  of  perfect  recklessness.  A  verdict  for 
$1000  was  held  not  to  be  excessive,  even  if  punitive 
damages  were  not  allowable.^  So,  in  consideration  of  the 
past  and  future  disability  of  a  passenger  injured  by  a 
railroad  collision;  held,  a  verdict  of  $4500  was  not  so 
excessive  as  to  indicate  partiality,  prejudice,  passion,  or 
anything  improper  in  the  jury.^  But,  w^iere  a  passenger 
on  a  railroad  had  his  leg  broken  and  some  liesh  wounds 
on  the  head,  by  a  collision,  and  was  restored  to  sound 
health  after  about  ten  months,  but  the  injured  leg  w^as 
somewhat  shorter  than  the  other;  held,  a  verdict  of  $6000 
was  excessive,  and  a  new  trial  was  ordered,  unless  the 
plaintiff  would  stipulate  to  reduce  the  verdict  to  $4000.* 
So  in  an  action  for  negligently  causing  the  death  of  the 
plaintifi;"'s  son,  who  w^as  four  years  of  age;  a  verdict  for 
$1500  was  set  aside.'^(«) 

'  Danville,  &c.  v.  Stewart,  2  Met.  *  Clapp  v.  Hudson,  &c.,  19  Barb. 

Ky.  119.  461. 

2  Chiles  V.  Drake,  3  Met.  (Ky.)  ^  Lelimau  v.  Brooklyn,  29  Barb. 

146.       '  234. 

*  Curtiss  V.  Rocbester,  &c.,   20 
Barb.  283. 

[a]  In  an  action  for  negligence,  the  jury  are  the  sole  judges  of  the 
damages,  and,  where  no  evidence  of  prejudice,  or  passion,  or  gross 
error,  or  misconception  appears,  courts  will  seldom  set  aside  the  verdict. 
Illinois  V.  Simmons,  38  111.  242  ;  1  Cliff.  524.  As  in  an  action  on  the 
case  to  recover  damages  for  personal  injuries  in  consequence  of  a  defect 
in  a  highway.  Wightman  v.  Providence,  1  Cliff.  524.  But  where  the 
damages  were  assessed  at  05525,  for  serious  injuries,  a  new  trial  was 
granted.  Gleason  v.  Bremen,  50  Maine,  222.  The  plaintiff,  a  cooper, 
but  employed  as  a  teamster  at  the  time  of  the  injury,  recovered  a  verdict 
for  .^8000  for  the  loss  of  his  hand,  caused  by  the  alleged  negligence  of 
employes  ou  a  ferry-boat  belonging  to,  and  under  the  control  of,  the 
defendant  There  were  some  grounds  for  belief  that  the  plaintiff's  own 
negligence  contributed  to  the  injury ;  and  there  was  little  evidence  of 


CH.  XVII.]  AMOUNT   OF   DAMAGES.  581 

§  35.  There  is  no  action,  in  which  a  motion  for  new 
trial  on  the  ground  of  excessive  damages  has  been  more 
frequently  overruled,  than  that  for  libel  or  Rlander,^(«)  As 
where  the  damages  for  a  libel  were  $1400,  and  the  de- 

'  See  Alexander  v.  Thomas,  25  Soutlnvick,  9  .Tolin.  45;  Letton  v. 

Ind.  3G8  ;  Sliute  v.  Barrett,  7  Pick.  Young,  2  Met.  (Ky.)  558  ;  Root  v. 

82;   Neal   v.  Lewis,  2'  Baj',  204;  King,  7  Cow.  013;  Cole  v.  Perry, 

Davis  V.  Davis,  2  N.  &  McC.  81;  8  Cow.  214;  Douglass  v.  Tousey, 

S.  Jones,  200;  Tillotson  v.  Cheet-  2  Wend.  352. 
ham,    2    John.    63 ;    Coleman    v. 

either  his  former  or  present  capacity  for  labor,  and  none  as  to  the  amount 
of  his  ordinary  earnings.  Held,  the  damages  were  excessive,  and  a  new 
trial  nmst  be  granted,  unless  the  plaintiff  would  reduce  the  damages  to 
•SGUOO.  Murray  v.  Hudson,  47  Barb.  196.  In  an  action  to  recover 
damages  for  the  death  of  a  woman,  killed  by  the  negligence  of  the 
defendant,  it  appeared  that  she  was  strong  and  healthy,  about  fifty  years 
of  age,  and  a  widow,  that  her  services  commanded  a  dollar  a  day  beside 
her  board,  that  she  died  intestate,  leaving  a  small  property,  and  that  her 
children  were  of  age  and  had  left  her.  Held,  a  verdict  of  $3.o00  was  so 
excessive,  that  a  new  trial  would  be  granted  unless  the  plaintiff  would 
remit  ."i^'iOOO.  Mclntyre  v.  New  York,  47  Barb.  .515.  In  an  action 
against  a  railroad  for  negligently  causing  the  death  of  the  plaintiff's 
daughter,  ten  years  old;  a  verdict  for  $3775  was  held  so  excessive,  as  to 
show  prejudice  or  partiality,  and  therefore  to  be  set  aside.  Potter  v. 
Chicago,  etc.,  R.  R.  Co.,  22  Wis.  615. 

(rt)  Where  the  plaintiff,  in  consequence  of  the  utterance  of  slanderous 
words,  lost  an  engagement  at  £50  a  year,  with  her  board,  £60  are  not  ex- 
cessive damages.  Jackson  v.  Hopperton,  16  C.  B.  (N.S.)  829.  In  a  late 
case — Willard  v.  Shaffer,  Leg.  lutell. — Sharswood,  J.,  says:  '-This  was 
an  action  for  a  libel  of  a  very  gross  character,  sent  by  the  wife  of  the 
defendant,  who  was  sued  with  her,  by  post,  to  a  third  person,  charging 
the  wife  of  the  plaintiff,  in  effect  with  adultery.  All  the  parties  con- 
cerned were  nearly  related,  being  aunts  and  nieces ;  and  it  did  not 
appear  that  the  scandal  would  ever  have  been  spread  beyond  the  family 
circle,  if  the  plaintiff  had  not  instituted  this  action  and  the  publication 
been  made  in  open  court.  No  doubt  it  was  this  consideration  mainly, 
which  induced  the  jury  to  give  so  moderate  a  verdict  ils  one  hundred 
dollars  for  the  plaintiff.  Yet  the  first  reason  assigned  for  a  new  trial  by 
the  defendants  is  that  the  damages  were  excessive.  The  defendants,  I 
•  think,  have  much  reason  to  be  satisfied  with  this  result,  and  I  certainly 
am  not  disposed  to  disturb  the  verdict  on  this  ground.'' 


582  THE   LAW    OF   NEW    TRIALS.  [CH.  XVII. 

fendant  a  man  of  wealth  and  influence.^  So,  in  a  case  of 
slander,  a  verdict  for  £4000.^  So,  for  a  charge  of  perjury, 
$7000,  the  defendant  being  very  rich.^ 

§  36.  In  an  action  for  slander,  in  imputing  undue 
familiarity  with  a  female  servant,  misappropriation  of 
the  sacrament-money,  &c.,  to  a  clergyman,  a  verdict  for 
£750  having  been  rendered,  the  court  refused  to  set  it 
aside,  Cockburn,  C.  J.,  remarking,  "Looking  at  the  de- 
structive and  fatal  tendency  of  the  imputations  cast  upon 
the  plaintiff  as  a  clergyman  and  a  gentleman,  the  damages 
are  anything  but  excessive."^ 

§  37.  More  especially  the  verdict  will  not  be  set  aside, 
where  there  is  a  plea  of  justification.^ 

§  38.  Where  the  jury,  in  an  action  for  slander,  charging 
the  plaintiff  wnth  theft,  swindling,  &c.,  rendered  at  first  a 
verdict  for  $1100  damages,  from  which  the  judge  dissented, 
and,  after  expressing  his  own  views  and  urging  reasons 
against  so  large  an  amount  of  damages,  returned  them  to 
a  second  consideration,  the  result  of  which  was  a  verdict 
for  $800 ;  held,  a  new  trial  would  not  be  granted,  although 
the  conduct  of  the  plaintiff  had  been  such  as  to  raise  a 
doubt  whether  he  was  entitled  to  more  than  nominal 
damages.^ 

§  39.  In  this,  however,  as  in  other  actions,  an  excep- 
tion to  the  general  rule  is  made.  The  amount  must  be 
so  large  as  to  be  clearly  and  grossly  unjust,  and  to  make 
it  apparent  that  it  is  the  result  of  excitement  or  some 


■  Bodwell  V.   Osgood,   3    Pick,  *  Ilighmoro    v.   The    Earl    and 

379  ;    SovUlnvick    v.    Stevens,    10  Countess  of  Harrington,  3  Com.  B. 

Jolin.  443.  (3  J.  Scott,  N.  S.)  142. 

2  Townsend  v.  Hughes,  2  Mod.  '^  Clark  v.  Binney,  2  Pick.  113. 
150.  ^  Woodruff   v.    Kichardson,    20 

3  Byckman  v.  Parkins,  9  AYend.  Conn.  238. 
470. 


Cir.  XVir.]  AMOUNT   OF    DAMAGES.  583 

Other  influence  than  that  of  the  law  and  the  evidence.^ 
The  damages  must  be  exorbitant,  or  such  as  at  first  blush 
appear  to  have  been  the  off'spring  of  partiality,  corrup- 
tion, passion,  prejudice,  malice,  or  undue  bias.^  The 
amount  must  show  unfair  dealing.^  The  rule  of  fair  com- 
pensation must  have  been  departed  from.^  Thus,  in  an 
early  case,  a  verdict  for  .£1500  for  calling  the  plaintiff  a 
"  traitor"  was  set  aside.^(rt) 

§  40.  The  rule,  against  granting  a  new  trial  for  exces- 
sive damages,  has  been  applied  to  the  action  for  malicious 
prosecution,  where  the  verdict  was  for  £50  f  or  £250;^  or 
$500;®  or  £400.^(^)     So  where  an  attachment  was  sued 

'  Potter  V.  Thompson,  32  Barb.  Barlow,  1  Man.  &  R.  275  ;  Cham- 
87.  bcrs  ».  Robinson,  1  Str.  691;  Ilarry 

2  Fallenstehi  ■».  Boothe,  13  Mis.     v.  Watson,  4  T.  R.  0.19,  n. 

427.  '  Farmer  v.    Darling,    4    Burr. 

3  Mayson  v.  Sheppard,  12  Ricli.     1971. 

254.  ^  Paukett?).  Livermore,  5  Clarke, 

<  Broach  v.  King,  23  Geo.  500 ;  277. 

Guard  v.  Risk,  11  Ind.  15G.  ^  Gilbert  v.  Burtenshaw,  Cowp. 

5  Wood  V.  Gunston,  Sty.  466.  230. 

6  Barnes,    436.     See    Caddy    v. 

(a)  In  an  action  for  calling  the  plaintiff  a  whore,  the  refusal  of  the 
court  to  set  aside,  as  excessive,  a  verdict  for  $4250,  was  held  to  be  error, 
when  it  appeared  that  the  defendant  was  actuated  by  a  desire  to  protect 
his  family  from  an  unworthy  neighbor,  that  he  had  no  malice  toward 
the  plaintiff,  that  he  was  so  poor  that  he  was  unable  to  give  security  on 
the  appeal,  and  that  the  plaintiff's  conduct  was  forward  and  suspicious, 
although  no  act  of  prostitution  was  proved.  Beggarly  v.  Craft,  31  Geo. 
309.  AVhcre,  in  an  action  for  slander,  the  -syords  charged  were,  "  Shut 
your  mouth,  you  damned  whore,"  the  speaking  of  which  was  not  denied ; 
and  the  plaintiff  was  shown  to  have  kept  in  her  family  two  lewd  women, 
a  fact  which  was  known  among  her  neighbors  and  to  the  defendant,  be- 
fore the  speaking ;  and  where  no  evidence  appeared  that  the  words  were 
believed,  but  the  record  showed  that  the  plaintiff  below  was  married 
during  the  pendency  of  the  suit;  and  no  direct  evidence  appeared 
against,  but  some  sustaining  her  chastity;  and  where,  on  a  second  trial, 
the  verdict  of  the  jury  was  for  $2000  damages :  held,  the  damages  were 
excessive,  and  the  decision  of  the  court  below,  refusing  a  new  trial  on 
that  ground,  must  be  reversed.     Swartzcl  v.  Dey,  3  Kans.  244. 

(h)  A  verdict  of  $1400,  in  an  action  for  malicious  prosecution  and  slander, 


584  THE    LAW    OF   NEW    TRIALS.  [CH.  XVII. 

out  on  a  i>ai(l  judgment,  and  property  to  the  amount  of 
§180  sold,  and  the  defendant  in  the  attachment  for  a 
malicious  prosecution  recovered  $750.'  So  for  indicting 
a  baronet,  a  military  officer,  and  member  of  Parliament, 
for  larceny,  with  a  view  to  screen  the  prosecutor  from  the 
charge  of  usury;  a  verdict  was  given  for  £10,000.  The 
defendant  was  proved  to  be  a  man  of  great  wealth.  The 
motion  for  a  new  trial  was  overruled.^  But  a  verdict  for 
$7600  was  set  aside.^ 

§  41.  New  trials  for  excessive  damages  have  been  often 
applied  for  in  the  action  of  trespass  qu.  cl.\a)  Thus,  in  an 
action  against  custom-house  ofhcers,  for  entering  the 
dwelling-house  of  the  plaintiff  to  search  for  goods,  the 
jury  gave  a  verdict  for  £100.  In  overruling  the  motion 
for  a  new  trial,  Wilmot,  C.  J.,  said,  "The  plaintiff  being 
a  butcher  or  inferior  person  makes  no  difference.  The 
suspicion  of  having  run  goods,  is  the  same  damage  to  him 
as  if  he  was  the  greatest  merchant  in  London."^ 

§  42.  A  verdict,  in  an  action  for  injury  to  a  mill,  by 
causing  the  water  to  flow  back  thereon,  will  not  be  set 

'  Bump  V.  Betts,  23  Wend.  85.  216  ;  Redshaw  v.  Brooks,  2  Wils. 

2  Leilh  V.  Pope,  2  W.  BL  1327.  405. 

3  Kinsoy  v.  Wallace,  30  Cal.4o2.  ^  Bruce  v.  Rawlins,  3  Wils.  01. 

4  See  Matthews  v.  West,  2  N.  &  Ace.  Sharpe  v.  Brice,  2  W.  Bl.  942. 
McC.  415  ;  Reed  v.  Davis,  4  Pick. 


is  not  excessive,  where  the  defendant  had  tlic  plaintiff,  a  woman,  arrested 
for  larceny,  and  persisted  in  the  prosecution  after  he  was  advised  by  able 
counsel  to  desist.     Humphries  v.  Parker,  52  Maine,  502. 

(a)  But,  in  an  action  for  a  trespass  upon  land,  damages  to  the  full 
value  of  the  land  are  excessive,  and  a  new  trial  will  be  granted.  Thomp- 
son V.  Morris,  &c.,  2  Harr.  480.  A  new  trial  was  refused,  where,  in 
an  action  of  trespass  qu.  clans.,  the  parties  being  both  men  of  rank,  it 
appeared  that  the  defendant,  being  intoxicated,  insisted  upon  sporting 
on  the  plaintiff's  land,  though  ordered  off,  and  used  very  intemperate 
language.  The  verdict  was  for  £500.  Merest  v.  Harvey,  5  Taun.  442. 
As  to  the  action  of  trespass  de  bon.  uspor.,  see  Hazard  v.  Israel,  1  Binn. 
240. 


CH.  XVII.]  AMOUNT    OP   DAMAGES.  585 

aside  for  excessive  damages,  unless  tlie  court  can  see  that 
the  jury  fell  into  some  important  mistake  of  computation, 
or  departed  from  some  rule  of  law  given  to  them  for  their 
guidance,  or  made  deductions  from  the  evidence  plainly 
not  warranted  by  it.'  lUit  a  verdict,  in  an  action  for  di- 
version of  a  Avatcrcoursc,  for  £3000,  was  set  aside.^ 

§  43.  In  an  action  for  breach  of  j^romise  of  marriage^  it 
is  said,  in  a  late  case,  in  order  to  justify  a  new  trial  for 
excessive  damages,  "we  must  have  laid  before  us  a  very 
clear  and  striking  case  of  indubitable  wrong,  so  clear  and 
striking  as  to  indicate  the  influence  of  undue  sympathy, 
prejudice,  or  corruption."^  Or  there  must  be  some  obvious 
error  or  misconception.'*  It  is  not  sufficient  that  the  dam- 
ages are  higher  than  the  court  would  have  awarded,  unless 
flagrantly  excessive,  or  disproportioned  to  the  injury.' 
More  especially,  in  an  action  for  breach  of  promise,  accom- 
panied with  seduction,  a  new  trial  will  not  be  granted, 
unless  it  appears  clearly  that  the  jury  acted  under  pre- 
judice, partiality,  or  gross  ignorance,  or  disregard  of  their 
duty.^  Thus  a  verdict  was  sustained  for  $5000.^  So  where 
the  defence  was,  that  the  defendant  had  heard  rumors 
against  the  character  of  the  plaintifi",  but  nothing  was 
shown  in  her  life  and  conduct  to  give  foundation  to  such 
rumors,  and  it  did  not  appear  that  he  was  ignorant  of  such 
conduct  before  he  made  the  promise,  and  the  defendant 
oflered  no  evidence  as  to  his  means ;  a  motion  to  set  aside 
the  verdict  as  excessive  was  overruled.^ 

I  44.  In  an  action  for  seduction  alone,  as  there  is  no 

'  Palmer  v.  Fiske,  2  Curt.  14.  1  John.  Cas.  116.     But  see  Gougli 

2  Plcydell  V.  Dorchester,  7  T.  R.  v.  Farr,  3  Carr.  &  P.  631. 

525.  5  Clark  v.  Pendleton,  20   Conn. 

^  Per  Sandford,   J.,   Waters  «.  495. 

Bristol,  26  Conn.  406  ;  1  C.  B.  (N.  «  pidlcr  v.  McKinley,  21  111.  308. 

S.)  660.  '  Goodall  v.  Thurman,  1   Head, 

«  Smith  V.  Woodfine,  1  C.  B.  (N.  209. 

S.)  660.  Sec  Johnston  v.  Caulkins,  »Capehart«.  Carradiuc,4Strobh. 

43. 


586 


THE   LAW   OF   NEW    TRIALS. 


[CU.  XVII. 


legal  measure  of  damages,  a  verdict  will  not  be  set  aside 
as  excessive,  unless  so  great  as  to  raise  the  suspicion  ot 
partiality  or  passion.^  Thus  a  verdict  for  $920  was  sus- 
tained, though  in  the  language  of  the  court  "the  character 
of  the  daughter  had  long  been  considered  loose  and  aban- 
doncd."2  go  a  verdict  for  $5000,  although  the  court 
would  have  been  better  satisfied  with  a  smaller  sum.^  So 
where  the  verdict  was  for  $9000,  a  motion  for  new  trial 
on  other  grounds  did  not  object  to  the  amount  of  damages."* 

§  45.  The  rule  is  applied  to  actions  for  criminal  conver- 
sation with  the  wife  of  the  plaintift?  So  for  enticing 
away  and  harboring  the  plaintiff's  wife.^ 


•  Stevenson  v.  Belknap,  G  Clarke, 
97.  See  Tullidije  v.  Wade,  3  Wils. 
18  ;  Bennetts.  Alcock,  2  T.  R.  166; 
Sarsient  v.  Deniston,  5  Cow.  106. 

2'^Per  Sutherland,  J.,  Sargent  «. 
Deniston,  5  Cow.  106. 

Ingersou  v.  Miller,  47  Barb.  47. 


1  Moran  v.  Dawes,  4  Cow.  412. 

5  Wilford  «.  Berkley,  1  Burr. 
009 ;  Cliem  v.  Brig,  1  il).  609. 
But  see  Chambers  I).  Caulfield,  0 
E.  244. 

5  Scberpf «.  Szadeczky,  4  E.  D. 
Smith,  110. 


CH.  XVIII.] 


NEW   TRIALS  IN   EQUITY. 


587 


CIIArTER  XVIII. 


NEW  TRIALS  IN  EQUITY. 


1. 

Genera]  rem.irks. 

24. 

Formal  errors. 

2. 

Mode  of  proceeding — injunc- 

20. 

Default. 

tion. 

27. 

Confession. 

8. 

Special    grounds    must    be 

30. 

Compromise. 

show 

n. 

81. 

Award. 

7. 

Amount  of  judgment. 

32. 

New  evidence 

8. 

Form  of  decree. 

34. 

In  jiart. 

9. 

Judii;mcnt  in  another  State. 

40. 

Payment. 

10. 

Terms. 

43. 

Set-off 

14. 

Successive  injunctions. 

45. 

Estop])el. 

lo. 

Time. 

46. 

Pleadings. 

IG. 

Laches — neglect,  delay,  &c. 

46f 

.  Parties. 

19. 

Pleadings. 

52. 

Title  to  lands. 

20. 

Exce])tions  to  the  strict  rule. 

58. 

Surety. 

21. 

Accident,  mistake,  &c. 

54. 

Trust. 

22. 

Fraud. 

55. 

Execution. 

§  1.  It  has  abundantly  appeared  in  tlie  foregoing  pages, 
that  the  remedy  of  a  nao  trials  regarded  as  a  strictly  legal 
proceeding,  partakes  largely  of  equitable  considerations. 
More  especially,  in  the  third  chapter,  the  point  was  fully 
illustrated,  that  a  new  trial  will  not  be  granted,  for  purely 
technical  reasons,  where  either  it  would  be  of  no  substan- 
tial benefit,  or  substantial  justice  has  been  done.  A  gene- 
ral view  of  the  Law  of  IS'ew  Trials  would,  however,  be 
technically  incomplete,  without  some  notice  of  Ncio  Trials 
in  Equity.  The  subject  has  become  comparatively  unim- 
portant in  practice,  since  the  recognition  by  courts  of  law 
of  the  various  grounds  for  setting  aside  verdicts,  which 
we  have  considered  at  length;  but  some  or  most  of  which, 
anciently,  could  be  relied  on  in  chancery  alone.  ]More 
particularly  the  two  grounds  of  newly-discovered  evidence 
and  surprise  furnished  the  most  constant  occasion  of  ap- 
peal to  equitable  interposition. 


588  THE   LAW    OF   NEW    TRIALS.  [CH.  XVIII. 

§  2.  Chancery  did  not  assume  to  order  a  new  trial, 
directly,  but  only  to  compel  the  prevailing  party  to 
submit  to  a  new  trial,  or  else  be  j>crpetually  enjoined  from 
enforcing  his  verdict  or  judgment.^  And  a  bill  for  this 
purpose  is  said  to  have  been  watched  with  extreme 
jealousy ;  not  being  sustained  for  the  rehearing  of  what 
had  been  already  heard,  or  "  when  it  consists  in  swearing 
only — unless  it  appears  by  deed  or  writing,  or  that  a 
witness,  on  whose  testimony  the  verdict  was  given,  was 
convicted  of  perjury. "-(«) 

'  Floyd   V.  Jfiyno,  6  John.  Ch.  3  Atk.  819.    See  also  1  Story's  Eq., 

479.     But  see  Carriugton  v.  Ilolal-  8d  ed.,  §  874  ;  3  Lead.  Cas.  in  Eq. 

bird,  19  Conn.  84.  160;  1  Hall.  Const.  Hist.  472;  Coit 

2  Batcman  v.  Willoe,  1   Scli.  &  v.   Haven,  30  Conn.  190;  Pelham 

Lef.  201;   Tovey  v.  Young,  Free.  v.  ]\Ioreland,  G  Eng.  443;   Pickins 

in  Chan.  193;  Richards  v.  Symes,  «.  Yarborough,  30 "Ala.  408. 

(a)  If,  in  equity,  a  question  of  personal  identity  is  submitted  to  the 
jury,  on  motion  and  with  consent,  and  a  verdict  found  and  a  motion  for 
a  new  trial  overruled ;  the  court  has  no  power  at  a  subsequent  term  to 
disregard  the  verdict,  and,  dispensing  with  a  jury,  dismiss  the  petition. 
Under  I  343  of  the  (Ky.)  Civil  Code,  the  verdict  was  entitled  to  the  same 
weight  as  in  an  action  at  law.  Moore's  v.  Shepherd,  2  Duv.  125.  A  new 
trial  of  issues,  tried  by  a  vice-chancellor  without  a  jury,  for  improper 
rejection  of  evidence,  will  not  be  granted,  unless  the  evidence  has  been 
formally  tendered  to  the  judge.  Penn  v.  Bibby,  Law  Rep.,  2  Ch.  127. 
In  Georgia,  whenever  a  court  of  equity  has  power  to  grant  a  new  trial, 
such  new  trial  can  be  granted  on  the  common-law  side  of  the  superior 
court,  upon  precisely  the  same  principles.  "Where  the  omission  of  the 
clerk  to  reject  as  security  an  incompetent  person  misled  the  plaintiff  in 
error,  and  prevented  his  giving  additional  security,  as  the  law  required, 
or  moving  before  the  term  had  closed  for  a  new  trial ;  held,  these 
circumstances  authorized  the  judge  below  to  hear  the  application  for  a 
new  trial,  and,  if,  upon  any  of  the  grounds  contained  in  the  motion,  he  was 
entitled  to  a  rehearing,  it  should  have  been  granted.  Eufaula  v.  Plant, 
37  -Geo.  672.  In  general,  when  it  is  proper  for  a  court  of  law  to  grant  a 
new  trial,  if  the  application  is  made  while  that  court  has  such  power, 
it  is  equally  proper  for  a  court  of  equity  to  do  so,  if  the  application 
be  made  on  grounds  arising  after  the  court  of  law  has  ceased  to  have 
the  power.  Hoskins  v.  Ilattenback,  14  Iowa,  314.  A  bill  to  procure 
a  new  trial  of  an  ejectment,  so  as  to  enable  a  witness  to  correct  his 
testimony  as  to  the  time  of  the  commencement  of  the  occupancy  of  the 


CII.  XVIII.]  NEW    TRIALS    IN   EQUITY.  589 

§  3.  From  this  brief  introduction  it  may  ho  seen,  that 
a  7iew  trial  in  equity  is  virtually  an  injunction^  by  a  court 
of  equity,  of  a  judgment  rendered,  or  an  execution  of  such 
judgment  issued,  by  a  court  of  law.  It  is  said,  in  an 
old  case:  "When  a  judgment  is  obtained  by  oppression, 
wrong,  and  a  hard  conscience,  the  chancellor  will  frustrate 
it  and  set  it  aside,  not  for  any  error  or  defect  in  the  judg- 
ment, but  for  the  hard  conscience  of  the  party."^  And 
the  general  rule  is  laid  down,  that  equity  will  grant  relief 
against  a  judgment,  which  is  against  conscience,  or  the 
justice  of  which  can  be  impeached  by  facts,  or  on  grounds 
of  which  the  party  could  not  avail  himself  at  law,  or  of 
which  he  was  prevented  from  availing  himself  by  fraud, 
accident,  mistake,  or  the  act  of  the  opposite  party,  without 
any  negligence  or  fraud  on  his  own  part.-  So  equity  will 
prevent  the  inequitable  use  of  a  good  judgment.^     The 

1  Per  Lord  EUesmere,  Oxford's  t.  Zane,  6  Gratt.  246;    Clifton  v. 

Case,  1  Ch.  Rep.  1;  Totli.  126.  Livor,  24  Geo.  91;  White  v.  Wash- 

Mient    i\  Ricards,    3    Md.   Ch.  iugtou, . 5  Gratt.  64.'5;  Post  t\  Board- 

Decis.  302;  Marine.  &c.  ■y.IIodgsou,  man,    1    Clark,    523;     Jordan    v. 

7Cranch,332;  Jarvis  ?;.  Chandler,  Loftin,  12  Ala.  547;   Forrester  «. 

1  Turn.  &  R.  319;  Lamb  d.  Ander-  Wilson,  1  Duer,  624  ;  Ridgeway  w. 

son,    1,  Chand.    224;    Rowan    v.  The  Bank,  &c.,  11  Humph.  523 ; 

Runnels,  5  How.    134  ;   Moore  v.  Lapiece   v.  Hughes,  24  :Miss.  69  ; 

Gamble,  1  Stockt.  246;  Pollock  v.  Prewitt  v.  Perry,  6  Tex.  260;  Doss 

Gill)ert,    10   Geo.    398 ;     Little    v.  v.  Miller,  6  Tex.   338 ;  Perrine  v. 

Price,  1  ]\Id.  Ch.  Decis.  182.  Carlisle,  19  Ala.  086  ;   Pickens  «. 

3  Garlick   v.  McArthur,  6  Wis.  Yarborough,  30  Ala.  408 ;  Robb  ?). 

450.    See,  as  to  surprise,  Gallaway  Halsey,  11  S.  &  M.  140  ;  P«well  v. 

B.  Alexander.  8  Leigh,  114;  Meem  Stewart,    17    Ala.    719;    Western 

V.  Rucker,  10  Gratt.  506  ;  Yathir  v.    AVoods,  1   Tex.  1  ;    Warner  v. 

defendant,  who  relied  on  a  statutory  title,  is  not  to  be  regarded  with 
favor.  Jones  v.  McCrea,  37  Ga.  48.  Equity  should  not  grant  a  new 
trial  at  law,  upon  the  ground  that  a  party  was  deprived,  without  fault 
on  his  part,  of  his  remedy  by  writ  of  error  to  correct  erroneous  rulings 
on  the  first  trial,  when  no  error  in  the  judgment  at  law  appears  on  the 
record.  Parker  v.  Home,  38  Miss.  215.  In  case  of  issues  awarded  in 
equity,  and  a  motion  for  a  new  trial  upon  the  ground  that  the  verdict  is 
against  evidence,  the  court  will  ordinarily  be  governed  by  the  rules  and 
principles  applied  to  such  motions  in  suits  at  law,  and  will  not  grant  a 
new  trial  merely  because  on  weighing  the  evidence  the  court  would  have 
reached  a  different  result.     Clark  v.  First,  45  N.  H.  331. 


590  THE    LAW    OP   NEW    TRIALS.  [CH.  XVIII. 

more  familiar  as  well  as  technical  expression,  for  the 
ground  of  equitable  interference  in  this  mode,  is  smyrise. 
(See  chap.  16.) 

§  4.  But,  on  the  other  hand,  it  is  said:  "The  general 
rule  is,  that  this  court  will  not  relieve  against  a  judgment 
at  law  on  the  ground  of  its  being  contrary  to  equity, 
unless  the  defendant  below  was  ignorant  of  the  fact  in 
question,  pending  the  suit,  or  it  could  not  have  been 
received  as  a  defence.  There  may  be  cases,  perhaps,  in 
which  this  general  rule  would  be  subject  to  some  modifi- 
cation."^ And  the  general  doctrine  is  laid  down,  that 
courts  of  equity  reluctantly  interfere  to  restrain  proceed- 
ings had  in  courts  of  law,  and  especially  after  judgment.^ 
That  a  court -of  chancery  will  not  interfere  with  a  judg- 
ment at  law,  unless  some  special  ground  for  relief  is 
shown.'  More  especially  where  the  relief  sought  is 
predicated  on  a  defence  equally  available  at  law.'*  That, 
where  a  party  is  sued  in  a  court  of  law,  having  exclusive 
jurisdiction  of  the  subject-matter,  he  must  make  his 
defence  there,  and  cannot  resort  to  equity  for  relief,  unless 
he  is  hindered  or  prevented  from  making  such  defence.' 
And  that,  before  equity  will  grant  relief,  three  things 
must  concur:  ignorance  of  the  defence  when  the  judg- 
ment was  rendered,  diligence  on  the  part  of  the  com- 
plainant, and  that  adequate  relief  cannot  be  had  at  law." 
So  it  is  held,  that  equity  will  not  relieve  against  a 
judgment  at  law,  except  for  fraud,  accident,  surprise,  or 
manifest  injustice,  unmixed  with  fault  or  negligence  on 

Conant,  24  Vt.  351;  Harris  tJ.Gwin,  »  Lockard  v.  Lockard,  IG   Ala. 

10  S.  &  M.  563  ;  Peters  v.  Lea<?ue,  423;  17  ibid.  673. 

13  Md.  58;  Powell  v.  Stewart,  17  ^  Foster  v.  The  State  Bank,  17 

Ala.  719;  Dyclie  ».  Patton,  8  Ired.  Ala.  073. 

Eq.  295;  Governor  v.  Barrow,  13  -'  Jamison   v.  May,  8  Eni::.  GOO; 

Ala.  540.  White  v.  Cahal,  3  Sw^an,  550. 

1  Lansing  v.  Eddy,  1  .John.  Ch.  **  Taylor  v.  Sutton,  15  Geo.  103; 

50;  Dunham  v.  Downer,  81  Verm.  Ileudrickson  v.  Ilinchley,  17  How. 

249.  443. 

*  Marsh  v.  Edgerton,  1  Chand. 
198. 


en.  XVIII.]  NEW    TRIALS   IN   EQUITY.  591 

the  comi)lainant's  part.^  A  party  seeking  to  enjoin  a 
judgment  must  sliow  that  the  plaintift'  had  no  cause  of 
action.-  That  a  defence  which  lie  failed  to  make  would 
have  been  available.^  That  the  judgment  is  clearly  con- 
trary to  equity  and  good  conscience.*  Equity  will  not 
enjoin  a  judgment  merely  on  the  ground  of  error!' 
(See  §  5.)  So  it  is  held,  that  a  judgment  at  law  cannot 
be  impeached  collaterally  in  equity.*'  A  court  of  chancery 
cannot  enter  into  a  case  which  has  been  already  investi- 
gated in  a  court  of  law,  according  to  the  ordinary  rules  of 
investigation  in  such  courts,  merely  on  the  ground  that 
injustice  has  been  done.  Or  that  the  judgment  was 
obtained  through  the  erroneous  statement  of  witnesses. 
Or  on  the  ground  of  error  in  law,  committed  by  the  law 
court.  Or  that  the  complainant  was  deprived  of  his 
defence  at  law,  by  the  court's  admitting  parol  proof  of  a 
judgment.^  And  a  party  has  no  right  to  enjoin  the 
execution  of  a  judgment,  absolute  and  unconditional  as 
to  the  matters  it  professed  to  decide,  during  a  litigation 
as  to  other  matters  in  controversy  reserved  by  the 
judgment.*^ 

§  5.  The  restriction  upon  courts  of  equity,  as  to  their 
interference  with  judgments  at  law,  is  sometimes  expressed 
in  the  proposition,  that,  unless  a  necessity  exists  for  it,  and 
a  manifest  injury  would  otherwise  be  done,  no  court,  o/At'r 
than  that  rendering  the  judgment^  has  jurisdiction  over  the 
execution.^    Relief  against  an  erroneous  judgment  at  law 

'  Pearce  v.  Chastain,  3   Kelly,  '  Vauglin  v.  JoUnsou,  1  Stockt. 

226 ;  PlK'lps  -v.  Peabody,  7  Cal.  50;  173.     See   Ellis  v.  Gosney,   J.  J. 

Rice  V.  Kailroad  Bank,  7  Uiimpli.  Mar.    346 ;   Bantley   v.  Dillanl,  1 

39.  Eiig.  79 ;  Hempstead  v.  Watkins, 

2  Huebscliman  v.  Baker,  7  Wis.  ib.  317. 

542.  8  Hereford  v.  Babin,  14  La.  An. 

3  23  Verm.  720.  333.     See  Huugcribrd  v.  Sigcrson, 
«  Wright  V.  Eaton,  7  Wis.  595  ;     20  How.  156;  Gatlin  v.  Kilpatrick, 

1  Stockt.  240  ;  Bradley  v.  Richard-  1  Car.  L.  U.  534;  Dickson  i\  Kich- 

son,  23  Verm.  720.  ardson,  16  Ark.    114;    Bradley  v. 

5  Dann  ('.  Fish,  8  Blackf.  407.  Ricluirdson,  23  Vt.  720. 

6  Redwiue  v.  Brown,  10  Geo.  ^  Douncll  v.  Parrott,  13  La.  An. 
311.  251. 


692  THE    LAW    OF    NEW    TRIALS.  [CIL  XVIII. 

cannot  be  granted  by  the  chancellor.^  (See  §  4.)  If  a 
defendant  wishes  to  avoid  the  effect  of  a  judgment  im- 
properly rendered  against  liim,  he  should  apply  to  the 
court  in  which  it  was  rendered;  and,  if  he  does  not  so 
apply,  it  seems  a  court  of  chancery  will  not  inquire  beyond 
the  record,  into  the  means  by  which  the  judgment  was 
obtained. 2  So,  as  we  have  already  seen,  it  is  held,  with 
some  qualifications,  that  a  court  of  equity  cannot  set  aside 
the  judgment  of  a  court  of  law,  and  grant  a  party  a  neio 
trial ;  it  cannot  act  upon  the  case^  but  may  upon  i\\Q  person^ 
and  so  might  well  decree  that,  unless  he  consents  to  have 
the  judgment  set  aside  and  a  new  trial  awarded,  he  shall 
be  ^perpetually  enjoined  from  executing  it.^ 

§  6.  Where  there  is  a  judgment,  and  also  a  decree  for  the 
same  demand,  the  collection  of  the  money  under  the  decree 
cannot  be  enjoined,  unless  the  complainant  allege  in  his 
bill  that  the  judgment  has  been  satisfied.^  So,  to  entitle 
a  party  to  an  injunction  on  the  execution  of  a  decree, 
pending  a  rehearing,  he  must  present  such  a  state  of  facts 
as,  if  true,  would  entitle  him  to  a  reversal  of  the  decree.' 
And  the  proper  course  to  stay  proceedings,  under  a  decree 
for  irregularity,  is  not  by  a  bill  of  injunction,  but  by 
petition  to  the  court.^  An  original  bill  for  an  injunction 
by  the  parties  to  a  former  suit,  or  their  privies,  will  not 
lie  to  restrain  proceedings  under  the  decree  in  such  suit.^ 
But  an  injunction,  commanding  and  enjoining  one  to 
cease  from  all  proceedings  on  his  judgments  recovered  at 
law,  was  held  to  operate  to  restrain  him  from  proceeding 
in  equity.^ 

'  Reynolds^.  Ilorine,  13  B.  IVIon.  s  Luckett  v.  White,  10  Gill  &  J. 

234 ;  Methodist,  eVc.  v.  Mayor,  &c.,  480. 

G  Gill,  391.  •>  Dyckman    v.    Kcrnochan,     2 

2  Hone  V.  Woolsey,  2  Edw.  Ch.  Paii,^e,  2G. 
289.  7  Ibid. 

3  Pelham  v.  Morcland,  G  Eug.  8  Littler.  Price,  1  Md.  Ch.  Decis. 
443.  182.     See  Georgia  v.  Brailslbrd,  2 

<  Duuham  v.  Collier,  1  Iowa,  54.     Dal.  402,  415. 


CII.  XVIII.]  NEW    TRIALS   IN   EQUITY.  593 

§  7.  In  reference  to  tlie  amount  of  a  judgment,  as  bearing 
upon  the  right  to  an  injunction;  equity  will  enjoin  a 
judgment  by  mistake  excessive  in  amount,  though  the 
land  of  the  debtor,  upon  which  execution  is  levied,  was 
previously  conveyed,  fraudulently,  to  defeat  the  judgment.* 

§  8.  Where  an  injunction  is  granted  on  a  judgment, 
and  afterwards  dissolved,  and  the  judgment  is  collected 
pending  the  bill,  the  court,  on  final  decree  perpetually  en- 
joining the  judgment,  may  decree  the  money  to  be  re- 
funded, though  there  is  only  a  prayer  for  general  relief.^ 

§  9.  An  injunction  may  issue  against  a  judgment  re- 
covered in  one  State,  on  a  prior  judgment  recovered  in 
another  State,  for  cause  aiiecting  the  judgment  of  the 
other  State.^  So  it  is  held,  in  Illinois,  that  a  bill  may  be 
filed  to  enjoin  proceedings  upon  a  judgment  of  one  of  the 
courts  of  the  State,  recovered  upon  a  judgment  in  the 
courts  of  another  State,  if  the  party  applying  has  not 
been  guilty  of  any  laches  in  the  assertion  of  his  rights, 
and  the  judgment  of  the  foreign  court  has  been  reversed.-* 
So  equity  will  restrain  the  use  of  an  advantage  gained  in 
a  court  of  ordinary  jurisdiction  of  another  State  by  fraud, 
accident,  or  mistake.^(a) 

'  "Williamson  r'.  Johnson,!  Halst.  'Wilson  ^.Robertson,  1  Over- 

Ch.  537.     See  Yantes  v.  Bnrdett,  3  ton,  266. 

Mis.  457 ;   Greathouse  v.  Ilord,  1  *  McJilton  v.  Love,  13  111.  486. 

Dana,  105.  s  Pearce  v.  Olney,  20  Conn.  544. 

2  Bryan  v.  Primm,  Breese,  33. 

(a)  DilTerent  local  rules  prevail  in  different  States,  with  reference  to 
the  eujoiuiug  of  judgments.  In  Texas,  an  injunction  to  stay  execution 
should  be  directed  to  the  District  Court  of  the  county  in  which  judg- 
ment was  rendered,  llendrick  v.  Cannon,  2  Tex.  259.  In  Kentucky, 
where  A.  and  B.  obtained  judgments  against  each"  other  in  different 
counties;  held,  the  chancellor  of  the  county  in  which  the  defendant  lived 
might  enjoin  one  judgment,  and  set  it  off"  against  the  other.  Mitchell  v. 
Stewart,  4  J.  J.  Marsh.  551.  But  a  judgment  in  the  Circuit  Court  of  one 
county  cannot  be  enjoined  by  the  Circuit  Court  of  another.  Lamaster  v. 
38 


594  THE    LAW    OF   NEW    TRIALS.  [CIL  XVIIl. 

§  10.  AVith  regard  to  tlie  terms  upon  which  a  ju(lt>;ment 
will  1)0  enjoined;  it  is  held  that,  where  a  judgment  debtor 
conies  into  equity  for  protection,  on  the  ground  that  he 
has  satisfied  the  judgment,  the  door  is  fully  open  for  the 
court  to  modify  or  grant  his  prayer,  upon  such  conditions 
as  justice  demands.^ 

§  11.  It  is  lield  tliat  an  injunction  to  a  judgment  at 
law  will,  in  general,  be  at  the  cost  of  the  complainant.^ 

§  12.  Unless  in  aid  of  a  suit  at  law,  it  is  held  that  no 
injunction  should  be  granted,  where  the  applicant  for  it 
does  not  submit  to  a  judgment  at  law,  as  he  cannot  con- 
tend at  law  and  in  chancery  at  the  same  time.^ 

§  13.  An  order  for  injunction  to  a  sale  under  execution 
is  not  effectual,  until  the  execution  of  the  bond  required 
by  the  order. ^(a) 

'Mechanics',  &c.  v.  Lynn,  1  '  Conway «.  Ellison,  14  Ark.  300. 
Pet.  370.  •»  Pell  v.  Lander,  8  B.  Mou.  554. 

2  Mosby  V.  Haskins,  4  lien.  &  M. 

427. 

Lair,  1  Dana,  109.  In  Ohio,  an  injunction  cannot  be  issued  by  the  Court 
of  Common  Pleas,  to  restrain  an  execution  of  the  Supreme  Court,  upon 
a  decree  of  alimony.  The  remedy  is  by  application  to  the  Supreme  Court 
on  return  of  the  execution.     Sample  v.  Ross,  16  Ohio,  419. 

(a)  In  North  Carolina,  under  the  statute  of  1800,  before  a  judgment 
will  be  enjoined,  the  amount  of  it  must  be  paid  to  the  clerk  of  the  court. 
Pugh  V.  l^Iaer,  4  Hawks,  302.  The  statute  of  New  Jersey  (Rev.  Laws, 
704,  ^  6),  which  directs  an  injunction  to  stay  proceedings  in  a  personal 
action  at  law,  after  verdict  and  judgment,  on  application  of  the  defend- 
ant, unless  the  money  be  first  paid  into  court,  applies  to  bills  of  inter- 
pleader. Morris,  &c.  v.  Bartlett,  2  Green,  Ch.  9.  The  statute  is  not 
confined  to  proceedings  in  the  suit  in  which  the  judgment  is  recovered. 
Kinney  v.  Ogdcn,  2  Creen,  Ch.  108.  So  it  applies,  where  an  injunction 
is  prayed  by  the  defendant  in  a  judgment,  to  restrain  proceedings  by 
foreign  attachment  to  enforce  the  judgment.  Ibid.  In  Maryland,  an 
injunction  may  be  granted  to  stay  execution,  in  some  cases,  without  bond. 
Cape,  &c.,  3  Bland.  COO.  In  New  York,  on  a  bill  to  restrain  proceedings 


CH.  XVIII.]  NEW    TRIALS   IN    EQUITY.  595 

§  14.  In  some  cases  there  may  be  successive  wjunctions 
to  the  same  judgment.  Thus,  after  the  dissolution  of  one 
injunction,  another  was  granted  to  tlie  same  judgment, 
and  made  perpetual,  it  appearing  that  the  contract  in 
question,  though  not  tainted  with  fraud,  was  founded  in 
a  mistake  of  both  parties  in  relation  to  the  existence  of  a 
fact  of  which  both  parties  were  ignorant,  and  whicli  was 
not  known  to  the  complainant  until  after  the  first  injunc- 
tion was  dissolved.^ 

§  15.  The  question  of  time  often  becomes  material  in 
cases  of  this  nature. 

§  16.  Delay  in  an  application  for  relief  against  a  judg- 
ment furnishes  a  presumption  against  the  equity  of  the 
proposed  defence.-  Thus,  after  a  verdict  for  the  plaintiff 
on  a  bond,  equity  will  not  order  an  account  of  transac- 
tions which  are  old  and  stale,  although  occurring,  in  part, 

'  Armstroug  v.  Hickman,  6  Mnnf.        =  Bartlett  v.  Gleiuly,  3  ^lis.  345. 

287. 

at  law  upon  a  judgment,  the  plaintiff  will  not  be  ordered  to  pay  the 
amount  of  the  judgment  into  court,  unless  there  is  danger  of  his  insol- 
vency. Eodgers  v.  Rodgcrs,  1  Paige,  426.  And  where  a  creditor's  bill 
charged  that  the  defendant,  pending  a  suit  at  law  by  the  plaintiff,  con- 
fessed judgment  to  another  person,  for  a  debt  not  due,  and  which  was 
fully  secured;  an  injunction  to  stay  proceedings  upon  the  judgment  was 
granted,  without  a  deposit  of  security  by  the  plaintiff.  Burns  v.  Morse, 
6  Paige,  108.  A  purchaser,  who  shows  no  sufficient  reason  for  not 
making  his  defence  at  law,  and  seeks  equity  for  relief,  must  be  governed 
by  the  general  rule  on  this  subject,  to  submit  to  take  a  title  at  the  hear- 
ing, and  complete  his  purchase.  McLaurin  v.  Parker,  24  Miss.  509.  In 
a  suit  to  enjoin  the  collection  of  a  judgment,  the  complainant  gave  a 
bond  for  the  exact  amount  of  the  judgment,  conditioned  to  pay  when 
ordered  by  the  Superior  Court.  Held,  the  sureties  were  bound  only  for 
that  sum.  Dickerson  v.  Cook,  3  Duer,  324.  To  obtain  an  injunction 
against  a  judgment,  on  the  ground  that  the  complainant  cannot  safely 
pay  it,  there  being  several  claimants,  he  should  file  a  bill  of  interpleader, 
and  pay  the  debt  into  court  for  the  party  showing  himself  entitled  thereto. 
Fowler  v.  Lee,  10  Gill  Sc  J.  358. 


596  THE   LAW    OF   NEW    TRIALS.  [CIL  XVIII. 

subsequent]^  to  the  making  of  the  bond,  for  the  purpose 
of  obtaining  a  discount.^  So  equity  will  not  disturb  a 
judgment  by  default,  upwards  of  twenty  years  old,  and 
an  execution  title  to  real  estate  vested  under  it,  for  w^ant 
of  notice  of  a  wa-it  attaching  the  defendant's  real  estate, 
when  he  was  openly  at  large  wathin  the  State;  the  facts 
having  come  to  his  knowledge  about  seventeen  years  be- 
fore the  filing  of  his  bill  for  relief;  the  sole  excuse  for  the 
delay  to  proceed  being,  that  the  complainant  had  no  evi- 
dence of  the  facts  upon  which  he  relied  for  relief,  until 
the  passage  of  a  recent  statute  enabling  parties  to  be  wit- 
nesses for  themselves  in  civil  cases;  and  the  purchaser 
under  the  execution  having,  in  the  mean  time,  built  upon 
and  improved  the  estate.^ 

§  17.  In  a  suit  to  stay  proceedings  at  law,  a  defendant 
obtained  time  to  answer,  and  then  pressed  on  the  action 
and  obtained  judgment.  After  a  very  considerable  delay, 
he  again  applied  for  further  time  to  answer;  but  it 
was  held,  that,  as  he  came  for  an  indulgence,  it  could 
only  be  granted  upon  the  terms  of  staying  execution  in 
the  action.^(a) 

§  18.  As  has  been  already  suggested,  a  judgment,  erro- 
neous simply  because  the  defendant  or  his  attorney  ne- 
iilected  to  make  a  defence  which  he  could  have  made,  in 
the  absence  of  surprise,  accident,  mistake,  or  fraud,  will 
not  be  enjoined.     And  it  is  even  held  sufiicient  ground  of 

'  Randolph  v.  Randolph,  1  Hen.  ^  Zulueta  f.  Vincnt,21  Eng.  Law 
&  M.  181.  and  Eq.  581. 

2  Briggs  v.  Smith,  5  R.  I.  213. 

(a)  In  North  Carolina,  the  statute,  providing  that  an  injunction  upon 
a  judgment  at  law  shall  not  issue  more  than  four  months  after  the  ren- 
dition of  judgment,  does  not  apply,  where  the  ground  of  the  application 
did  not  exist  when  the  judgment  was  rendered.  Kerns  v.  Chambers,  3 
Ired.  Ch.  57G. 


CH.  XVIII.]  NEW    TRIALS    IN    EQUITY.  597 

refusal  that  the  hill  itself  shows  a  good  defence.'  So, 
where  the  defendant  might  have  had  all  the  relief  he  was 
entitled  to,  upon  an  application  in  the  original  action, 
which  ho  neglected  to  make,  he  cannot  have  an  injunc- 
tion.^ Thus  if  he  could  have  had  the  judgment  opened; 
even  though  the  claim  was  unconscientious.^  So  where  a 
party  moved  for  a  now  trial  on  the  ground  of  surprise, 
and  for  other  causes  examinable  at  law,  the  motion  being 
denied  and  no  exceptions  taken ;  the  Court  of  Chancery 
has  no  jurisdiction  to  grant  relief.'*  Thus  it  is  no  suffi- 
cient excuse  for  not  making  a  defence  at  law,  so  as  to  give 
chancery  jurisdiction,  that  a  creek,  which  had  to  be 
crossed  to  get  to  the  court-house,  was  so  swollen  by  rains, 
on  the  first  day  of  the  court,  that  it  could  not  be  crossed, 
and  so  continued  for  three  days ;  it  not  being  shown  on 
what  day  the  court  adjourned,  or  when  the  judgment  was 
rendered,  and  no  eflbrt  having  boon  made  to  get  to  the 
court-house  after  the  flood  subsided.'  And  an  injunction 
will  not  be  granted,  where  a  defendant  has  not  used  due 
diligence  in  applj'ing  to  chancery  for  a  discovery  to  assist 
his  defence  at  law.^     Or  where  he  neglected  to  prosecute 

'  Jordan  v.  Thomas,  34  Miss.  72;  4  ;  Shipp  v.  Wheelcss,  33  ;Miss.  640; 

Todd  V.  Fish,  14  La.  An.  13  ;  Gib-  Donnell  v.  Parrott,  13  La.  An.  351; 

son  V.  Moore,  23  Tex.  611  ;  Kriecli-  Walker  v.  Robbius,  14  How.  584; 

baum  V.  Bridires,    1    Clarice,    14;  Bellamy  v.  Woodson,  4  Geo.  175; 

Champion  v.  Miller,  3  Jones   Eq.  Duncan  v.  Lyon.  3  John.  Ch.  351  ; 

194;  Vauixhn   v.  Fuller,   23   Geo.  Trevor  v.  McKay,    15   Geo.    550; 

366;  2  Fairf.  218;  Rogers  t'.  Kings-  Skinner   r.   Deming,  2  Cart.  558; 

bury,  23  Geo.  60;  Carters.  Bennett,  Bruuer  y.  Planters'  Bank.  23  Miss. 

6  Flori.   214;  Jones  v.  Kilgore,  3  400;  Scroggins  p.  Howorth,  ib.  514; 

Rich.  Eq.  63  ;  Pearce  v.  Chastain,  Basye  v.  Beard,  12  B.  ]\Ion.  581  ; 

3  Kelly,  226  ;  Brandon  v.  Green,  7  Prewitt  v.  Pcrrv,  6  Tex.  200. 

Humph.  130;  Meek  r.  Howard,  10  2  Borland  ».  Thornton.  12   Cal. 

S.    &   M.    502;   Methodist,  &c.  v.  440. 

Mayor,  &c.,  6  Gill,  391  ;  Conway  »  ibid. 

V.  Ellison,   14  Ark.  360;  Little  v.  *■  Hendrickson  1J.  Hinkley,  5  Mc- 

Price,  1   Md.   Ch.   Dec.  182  ;  Wil-  Lean,  211  ;  Champion  v.  Miller,  3 

liams  V.  Jones,  10  S.  &  i\I.   108 ;  Jones,  Eq.  194. 

Scrapie  V.  ISIcGatagan,  ib.  98;  Bran-  ^  English  v.  Savage,  14  Ala.  342. 

don  V.Green,  7  Humph.  130;  Faulk-  See  Burton  v.  Hynson,  14  Ark.  32; 

ner   v.  Campbell,    1    Morris,    148 ;  Sanders   «.   Fisher,    11    Ala.    813 ; 

Miller  v.  IMeGuire,  ib.  150  ;  Paynter  Houston  v.  Wolcott,  7  Clarke,  173. 

V.  Evans,  7  B.  Mou.  420 ;  13  Tex.  «  Titcomb  v.  Potter,  3  Fiiirf.  318. 


598  THE   LAW    OF   NEW    TRIALS.  [CII.  XVIIL 

a  certiorari  in  season.'  Or  where  be  has  a  perfect  remedy 
by  a  cross-action,  for  breach  of  warranty  of  the  article, 
for  the  price  of  which  the  original  suit  was  brought ;  or 
has  any  other  adequate  remedy.^  lie  must  show  that  he 
has  a  good  defence,  of  which  he  had  no  knowledge  until 
after  judgment,  or  that  he  was  prevented  from  using  it 
by  fraud  or  accident,  or  the  acts  of  the  adverse  jmrty,  un- 
mixed with  negligence  or  fault  on  his  part.^  So  any  de- 
fence, which  might  be  interposed  at  law  to  defeat  a 
recovery  upon  a  contract,  or  a  portion  of  it,  must  be  so 
interposed,  or  it  is  concluded  by  the  judgment.^ 

§  19.  The  same  general  principle  is  adopted  in  reference 
to  the  i-)lcadii}gs.  (See  §  18.)  Tims,  though  the  bill  states, 
that  the  complaii^ant  was  ignorant  of  facts  wdiich  would 
constitute  a  perfect  defence  to  an  action  at  law  against 
him,  until  after  judgment;  yet  equity  will  not  restrain 
the  collection  of  the  judgment,  unless  it  be  further 
stated,  that  the  complainant  had,  before  the  rendition  of 
the  judgment,  used  due  diligence  to  ascertain  the  facts 
necessary  to  his  defence.^  So  it  is  not  sufficient  for  the 
complainant  to  allege,  that  he  was  ignorant  of  the  facts 
on  which  he  relies  for  defence  until  long  after  the  rendi- 
tion of  the  judgment." 

§  20.  But  it  is  held  that  the  same  certainty  of  proof  is  not 
required  to  establish  an  excuse  for  not  making  a  defence 
at  law,  which  would  be  required  to  establish  the  existence 
of  that  defence.^  And  the  general  rule  above  stated  does 
not  apply,  if  the  defendant  in  an  action  at  law,  who  seeks 
relief  in  equity,  had  a  good  defence,  but  his  neglect  to 


'  Musgrove  D.Chambers,  13  Tex.  *  Day  «.  Cummings,  19  Vt.  496. 

83.  5  Slack  V.  Wood,  9   Gratt.   40  ; 

-  Ponder  v.  Cox,  2G   Geo.  485  ;  Taliaferro  v.  Branch  Bank,  33  Ala. 

Fitzhugh  V.  Orton,  13  Tex.  4.  755. 

3  Ko'bbins  v.  :Mount,  3  Kelly,  74;  e  23  Ala.  755. 

Brandon  «.  Green,  7  Humph.  130  ;  ^  Ricct?.Euilroad,  &c.,7IIumph. 

Meek  v.  Howard,  10  S.  &  M.  503.  39. 


CH.  XVIII.]  NEW    TRIALS   IN   EQUITY.  509 

make  it  was  the  result  of  fraud  or  accident,  or  tlic  action 
of  the  plaintiff.^  Or  where  he  was  not  served  with  pro- 
cess, liad  no  notice  of  the  suit,  and  neither  appeared,  nor 
authorized  any  one  to  appear  for  him.- 

§  21.  "Where,  through  accident  or  mistake  (as  well  as 
fraud),  a  judgment  has  been  entered  for  an  amount,  or  in 
terms,  not  intended,  equity  will,  on  clear  proof,  give  relief.^ 
But  not  where  the  party  was  prevented  from  making  his 
defence  at  law  by  a  mistake  of  law,  although  a  mutual 
mistake  of  both  parties.^  ISTor  on  the  ground  that  his 
counsel  mistook  the  facts  of  his  defence,  if  he  was  present 
at  the  trial.'  ISTor  that  the  party  has  mistaken  his  rights, 
and  so  failed  to  make  a  defence,  whicli  it  was  competent 
for  him  to  make  at  law.*'  So  where  a  judgment  was 
obtained  by  default,  in  consequence  of  a  letter's  not  being 
received  in  season,  which  was  sent  by  mail  by  the  party 
to  his  attorney ;  this  was  held  not  to  be  such  an  accident 
as  would  warrant  the  interference  of  a  court  of  equity, 
since  common  prudence  would  have  guarded  against  it 
by  sending  an  agent.^ 

§  22.  Fraud  is  another  ground  of  injunction.^  And 
this,  although  the  party  might  find  a  remedy  in  a  court 
of  law ;  or  though  he  had  notice  of  the  judgment  in  time 
to  appeal,  and  made  an  abortive  attempt  to  do  so.^  A 
former  recovery,  pleaded  in  bar  to  a  bill  for  relief  against 
a  judgment  at  law,  alleged  to  have  been  obtained  by 
fraud,  will  not  avail  the  defendant.^"  Thus  equity  will 
enjoin  a  judgment,  on  the  ground  that  there  was  a  good 

'  Watt  ■».  Cobb,    32   Ala.    530;  ^  Essex  v.  Berry,  2  Verm.  IGl. 

Farmprs\  &c.  v.  Ruse,  27  Geo.  391.  «  See  ]Munn  v.  Matlock,  17  Ark. 

2  Stubbs  V.  Leavitt,  30  Ala.  353.  513  ;    Wiiigate    v.    Haywood,    40 

3  Katz  V.  Moore,  13  Md.  506.  N.  H.  437. 

*  Richmond,  Ac.  v.  Skippen,  3  »  Nelsou  v.  Rockwell,  14  111. 
P.  &  II.  (Va.)  327.  375. 

5  Jamison  v.  May,  8  Eng.  GOO.  '"  Easton  v.  Collier,  3  Mis.  379, 

6  Dickerson  v.  Board,  etc.,  G  lud. 
138. 


600  THE   LAW    OF   NEW    TRIALS.  [CII.  XVIII. 

defence,  of  wliich  tlie  defendant  did  not  know  at  the  time 
the  judgment  w^as  rendered,  and  tliat  ho  w^as  entitled  to 
pay  the  debt  in  depreciated  notes,  of  wliich  privilege  It 
liad  been  sought  to  deprive  him  by  fraud  and  collusion.^ 
And  where,  after  a  judgment  for  A.,  a  nominal  party,  a 
fraud  is  discovered,  by  which  a  bill  for  the  enforcement 
of  the  judgment  by  A.  for  B.  is  successfully  resisted;  this 
is  binding  on  A.  and  B.,  and  a  suit  for  cancelling  the 
judgment  and  for  perpetual  injunction  will  be  sustained. 
The  last  suit  may  be  brought  by  the  defendant  in  the 
original  cause,  or  his  assignees  as  representing  his  property, 
that  the  cloud  upon  the  property  may  be  dispelled.^  So 
wdiere  a  party,  having  a  good  defence  to  an  action,  is 
prevented,  by  the  gross  fraud  of  the  plaintiff  in  the  suit, 
and  others,  from  setting  up  that  defence,  and  a  judgment 
is  obtained  against  him,  without  any  negligence  or  fault 
on  his  part:  it  is  a  proper  case  for  relief  in  equity  against 
the  judgment;  and  the  persons  guilty  of  the  fraud, 
although  not  parties  to  the  suit  at  law,  are  proper  parties 
to  the  bill  in  equity.^  So  where  an  owmer  of  personal 
property,  encumbered  by  liens  for  more  than  its  value, 
sold  it,  under  a  representation  that  it  was  unencumbered, 
and  then  obtained  a  judgment  for  the  purchase-money; 
the  collection  of  the  judgment  was  enjoined  till  the 
encumbrances  were  removed.^ 

§  23.  A  bill,  to  enjoin  a  judgment  at  law  for  fraud  in 
the  contract  on  which  it  is  founded,  must  show  that  the 
defence  w^as  not  made  at  law,  and  that  the  omission  to 
make  it  occurred  without  any  neglect  of  the  complainant.'* 


•  Davis  V.  Tilcston,  G  IIow.  114.  179  ;  Frocman  v.  Sedwick,  G  Gill, 

2  Monroe  v.  Delavan,  2G  Barb.  28 ;     Riclianlson    v.    Williams,    3 
16,  Jones  Ei[.  110;  Gougli  v.  Pratt,  9 

3  Iluggins  V.  Kins,  3  Barl).  GIG.  Md.  520  ;  Nelson  v.  Armstrong,  5 

4  Poe  ».  Decker,  o  Ind.  150.  Gratt.    £554 ;    Wells   v.    Smith,    13 

5  Parker  v.  Morton,  5  Blackf.  1.  Gray,  2C7. 
Sec  Sohier  v.  Merril,  3  W.  &  M. 


CH.  XVIII.]  NEW    TRIALS   IN   EQUITY.  GOl 

§  24.  In  reference  to  formal  errors  as  a  ground  for 
equitable  interference;  the  fact,  that  an  error  in  the 
docketing  of  a  judgment  was  the  error  of  the  clerk,  and 
not  the  fault  of  the  judgment  creditor  or  his  attorney, 
will  not  authorize  the  Court  of  Chancery  to  interfere,  to 
deprive  another  judgment  creditor  of  his  legal  priority 
thereby  obtained.^  And  judgments  of  a  court  of  record 
cannot  be  falsified  by  -pvooi  aliunde.  Thus,  where  a  judg- 
ment was  entered  by  the  clerk  as  upon  a  verdict,  the  error 
cannot  be  corrected  by  a  court  of  chancery,  upon  parol 
proof  that  the  judgment,  by  agreement,  should  have  been 
entered  nil  dieit  for  a  less  sum.^  So,  on  the  other  hand, 
A.  commenced  a  suit  against  B.  on  a  valid  debt,  and 
attached  a  large  amount  of  property;  the  writ  being 
issued  by  a  clerk  who  had  usually  issued  such  writs,  but, 
as  was  afterwards  decided,  without  authority.  B.  brought 
an  action  of  trespass  against  A.  and  obtained  judgment. 
A  filed  a  bill  to  enjoin  the  judgment.  Held,  he  was  not 
entitled  to  relief.^ 

§  25.  Equity  will  not  perpetually  enjoin  a  judgment, 
upon  the  ground  that  the  ofiicer's  return  as  to  the  service 
was  false.^  So  a  bill  for  an  injunction  did  not  allege 
fraud  on  the  part  of  the  plaintift'  in  the  judgment,  but 
merely  that  the  deputy  sheritf  served  the  summons  out  of 
his  bailiwick,  and,  being  informed  of  the  defendant's 
residence  out  of  his  bailiwick,  failed  to  make  the  return 
of  non  est  as  he  had  promised  to  do.  The  bill  also 
admitted  indebtedness  for  a  part  of  the  amount,  but  did 
not  state  how  much,  nor  offer  to  pay  it.  Held,  no  suffi- 
cient ground  of  injunction.^  So  (in  California)  a  judgment 
by  default  will  not  be  enjoined,  on  the  ground  that  the 

>  Buciifin   V.    Sumner,    1   Barb.  040  ;    "Williams    v.    Caplinger,    6 

Ch.  IG.-).  Humph.  2r)7. 

2  Bank  of  Tennes3ee  v.  Patter-  ^  Walker  v.  Robbins,  14  Ho-w. 
son,  9  Humph.  3G3.  584.     See  Windwart  v.  Allen,  13 

3  Stetson  V.  Goldsmith,  31  Ala.  ]\Id.  19G. 

5  Gardner  v.  Jenkins,  14  Md.  58. 


602  THE    LAW    OF   NEW    TRIALS.  [cil.  XVIII. 

sheriff's  return  on  the  summons  does  not  show  the  place 
in  whicb  service  was  made,  where  it  is  proved  on  the 
hearing,  that  the  defendant  was  served  in  a  certain  county 
in  tlie  State  more  than  forty  days  before  the  entry  of  his 
default.'  But  equity  will  enjoin  tlio  judgment  in  a  suit 
where  the  plaintiff  is  a  sheriff  and  serves  his  own  writ.^ 
So,  where  no  process  was  executed  upon  a  defendant  in  an 
action  at  law,  and  he  did  not  appear  to  make  defence,  and 
judgment  went  against  him,  of  which  he  had  no  notice 
until  long  after  its  rendition;  held,  he  was  entitled  to  an 
injunction  against  the  judgment,  whether  he  could  have 
made  a  valid  defence  or  not.^  And  a  judgment  obtained 
by  means  of  a  false  return,  and  Avithout  any  notice  to  the 
defendant,  may  be  relieved  against.  Thus  where  it  was 
uncertain  whether  the  notice  was  served  at  all,  and,  if  it 
was,  it  appeared  to  have  been  served  in  such  a  manner,  by 
reading  it  to  the  defendant,  who  was  a  laboring  man  and 
unacquainted  with  such  matters,  and  at  the  same  time 
handing  to  him  the  declaration  in  another  suit,  as  would 
naturally  mislead  him ;  and  it  appeared  that  he  had  a 
good  defence  to  the  action:  an  injunction  against  the 
judgment  was  ordered.^ 

§  26.  Equity  will  relieve  against  a  judgment  obtained 
on  default^  by  the  fraud  of  the  plaintiff.^  Or  where  there 
is  no  service  and  a  default,  if  the  merits  require  it.*^  So 
where,  by  the  neglect  of  an  attorney  of  good  reputation, 
a  party  has  been  defaulted ;  if  he,  immediately  upon  dis- 
covering the  default,  apply  for  redress;  more  especially 
where  the  attorney  is  insolvent.'^  But  where  a  defendant, 
whose  counsel  was  elected  to  the  bench,  heard  the  court 
announce  at  the  next  term,  that  no  case  in  which  he  had 
been  employed  would  be  heard,  and  went  away  and  was 

•  Pico  V.  Sunol,  6  Cal.  294.  ■>  Oweus  v.  RanstPatl,  23  111.  161; 

2  Kuott  «.  Jarboe,  1  Met.  (Ky.)  Pryor  «.  Emerson,  23  Tex.  1G3. 
tj04.  5"  Porter  v.  Moffet,  1  ^Morris,  108. 

3  Bell  V.  Williams,  1  Head,  239.  «  laicas  v.  Waller,  1  ]\Iorris,3n;5. 

'  Ilucbsch  V.  Baker,  7  Wis.  542. 


CII.  XVIII.]  NEW    TRIALS   IN   EQUITY.  603 

defaulted;  bold,  in  the  al)seiice  of  any  substantial  de- 
fence, be  was  not  entitled  to  an  injunction.^  So  a 
party,  against  wbom  a  judgment  at  law  is  rendered 
by  default,  cannot  obtain  relief  against  it  in  equity, 
upon  the  ground  that  his  attorney  failed  to  appear  for 
him,  and  appeared  for  the  opposite  party;  when  he  had 
only  requested  the  attorney  to  attend  to  any  and  all 
business  for  him,  and  had  not  mentioned  any  particular 
ease.2  Nor  where  a  defendant  misnamed  in  the  process  is 
in  court  wlien  judgment  is  rendered  against  him  by  de- 
fault, and  fails  to  defend  by  advice  of  his  counsel.^  Nor 
where  one,  not  duly  served  with  process,  suffers  judgment 
by  default,  and,  on  the  execution  of  a  writ  of  inquiry  at 
a  subsequent  term,  appears,  defends,  submits  evidence  to 
the  jury,  makes  various  motions,  files  a  bill  of  exceptions, 
and  appeals,  but  makes  no  proper  attempt  to  have  the 
judgment  by  default  set  aside.  His  remedy  was  perfect 
at  law.^a) 

§  27.  A  judgment  may  also  have  been  rendered  by 
confession. 

§  28.  In  order  to  induce  a  court  of  equity  to  declare  a 
judgment  confessed  for  a  certain  amount  to  be  merely 
collateral  security  for  whatever  sum  might  be  found  due, 
they  must  be  satisfied  beyond  a  reasonable  doubt  that 
sucli  was  the  agreement;  but  they  will  then  enjoin  the 
judgment,  on  the  ground  that  to  enforce  it  would  be  a 
fraud.^ 

'  Cardia -y.  Jones,  23  Geo.  17.J.  s  Hoighler  v.    Savage,    &c.,  13 

2  Watts  V.  Gayle,  30  Ala.  817.  Md.  ;58:}.     See  Daveiss  v.  McKee, 

3  Graham  v.  Roberts,  1  Head,  56.  1   Bibb,  331 ;  Oakley  v.  Yoimg,  3 
1  Ibid  Halst.  Ch.  433 ;  Cheek  v.  Taylor, 

23  Geo.  137. 


(a)  An  application  in  equity  by  a  defendant  for  a  new  trial,  on  the 
ground  that  he  was  defaulted,  and  thereby  prevented  from  maintaining 
a  claim  in  set-off,  will  be  refused,  if  it  does  not  appear  that  he  is  in 
danger  of  losing  his  claim.     Clute  v.  Ewiug,  21  Tex.  677. 


604  THE   LAW   OF   NEW    TRIALS.  [CIL  XVIII. 

§  29.  T>nt  it  will  require  a  very  strong-  case  to  justify 
an  injunction  upon  a  judgment  rendered  by  confession 
on  a  debt  due  for  more  than  thirty  years,  from  which  no 
appeal  has  been  taken,'  So  where  judgments  were  ren- 
dered on  confession  before  a  justice  of  the  peace,  no  war- 
rants having  been  issued  or  served  on  the  defendants;  on 
a  bill  for  injunction  to  restrain  executions,  it  was  held, 
that  relief  should  be  sought  at  law  by  appeal,  and  not  in 
equity.^ 

§  30.  Equity  will  not  re-examine  and  re-adjust  settle- 
ments made  by  compromise  judgments  in  courts  of  law 
having  jurisdiction  of  the  subject-matter,  unless  in  case  of 
fraud,  accident,  or  mistake.^ 

§  31.  A  bill  will  not  lie  to  enjoin  a  judgment  upon  an 
award,  upon  the  ground  that  the  arbitrators  received 
hearsay  evidence,  and  committed  other  irregularities  at 
the  hearing.* 

§  32.  After  a  verdict  in  an  inferior  court,  which  has  no 
power  to  grant  a  new  trial,  chancery  will  grant  relief  on 
the  ground  of  newly-discovered  evidence,  where  the  sum  in 
controversy  is  sufficiently  large  to  bear  the  expense.^ 

§  33.  In  a  bill  to  enjoin  a  judgment  on  the  ground  of 
newly-discovered  evidence,  such  evidence  should  be  set 
forth."      It  must  not  be  ciimidativeJ     And  it  has  been 


»  Gravelyw.  Sout]ierlana,29Geo.  Lyford,    37   N.    IT.  512;  Robb   v. 

335.  Ilalscy,  11  S.  &  M.  140. 

2  Bmmbangh  v.  Schnebly,  2  Md.  3  Hahn  v.  Hart,  12  B.  IMon.  426. 

320.    Sec  Mihior  v.  Georgia,  &c.,  4  *  Hunt  «.  Coachman,  G  Rich.  Eq. 

Geo.    ?,S~} ;    Gwinn   v.   Newton,   1  280. 

Humph.  710 ;  Stein  v.  Burden,  30  ^  FJoyd   v.  .Taync,  0  .Tolin.  Ch. 

Ala.  270;  Young  ».  Beardsk^y,  11  479.     See  Basye  v.  Beard,  12  B. 

Paige,  93;  Lake  v  Cooke,  15  111.  Mon.  581  ;  Billups».  Scars,5  Gratt. 

353  ;  llichards  v.  Curlcwis,  31  Eng.  31. 

Law   and   Eq.,   419  ;    Prather    v.  ^  Miller  v.  McGuire,  1  Morris, 

Prathcr,  11  Gill  &  .T.  110;  Cayce  150. 

V.  Powell,  20  Tex.  767 ;  Buuton  v.  ^  Pemberlon  v.  Kirk,  4  Ired.  Eq. 

178. 


CII.  XVIII.]  NEW    TRIALS   IN    EQUITY.  605 

sometimes  held  tliat  0([mty  will  not  interfere,  except  in  a 
case  of  fraud,  in  behalf  of  either  party,  upon  the  ground 
of  testimony  being  discovered  since  the  trial,  which  was 
unknown  to  the  party  at  the  time  of  the  trial,  and  which 
would  have  materially  varied  the  result.^  Such  relief 
will  not  be  granted  for  newly-discovered  evidence  of  pay- 
ment, where  the  plaintiff  neglected  to  plead  the  payment, 
and  to  produce  witnesses  of  admissions,  by  the  defendant, 
of  the  payment;  though  the  full  extent  of  their  testimony 
was  not  known  to  the  plaintiff,  who,  it  appeared,  had 
made  no  inquiry.^ 

§  34.  Where  the  execution  of  a  judgment  has  been 
enjoined,  and  the  defendant  admits,  upon  being  interro- 
gated, a  'partial  payment,  the  injunction  should  be  per- 
petuated for  this  amount,  and  dissolved  for  the  re- 
mainder.3  So  where  part  of  the  judgment  appears  from 
the  petition  to  be  just,  an  injunction  as  to  the  whole 
should  be  reversed.^ 

§  35.  When  the  amount  of  the  /.  fa.  exceeds  that  of 
the  judgment,  the  right  to  enjoin  is  limited  to  the  excess.' 

§  36.  Equity  will  grant  relief  against  a  judgment  ob- 
tained by  fraud,  to  the  extent  of  the  injury,  and,  if  it 
applies  only  to  part  of  the  land,  relief  will  be  granted 
to  that  extent.^ 

§  37.  Where,  on  relieving  against  a  judgment,  there  is 
no  means  of  ascertaining  how  far  it  is  correct,  but  only 

'  Powell  V.  Watson,  6  Ired.  Eq.  89 ;  Sneed  v.  Town,  4  Eng.   535 

94.  Thomas  v.  Brashear,  4  ]\Ionr.  65 

2  Floyd  V.  Jayne,  6  John.  Ch.  Rust  v.  Ware,  6  Gratt.  50 ;  New 
479.  man  v.  Meek,  1  S.  ct  M.  Ch.  ;J31 

3  Perry  v.  Kearney,  14  La.  An.  AVillis   v.   Gordon,    2'3   Tex.   241 
400 ;    Tapp  v.  Beverley,  1  Leigh,  Alexander  v.  Baylor,  30  ib.  500. 
80.  5  iJjiiTow  V.   Kobichaux.  14  La 

*  Crisswell  v.  Bledsoe,  22  Tex.     An.  207. 
656.     See  Booth  v.  Kesler,  6  Gratt.        ^  Dunlap  y.  Stetson,  4  Mas.  349 
350  ;  Bell  c.  Cunningham,  1  Sumn. 


606  THE   LAW    OP   NEW    TRIALS.  [CIL  XVIII. 

that  it  is  unconscionable  to  some  extent,  it  will  be  set 
aside  in  toto.^ 

§  38.  Equity  has,  under  ordinary  circumstances,  no 
power  to  reduce  an  assessment  of  damages  by  a  jury  in 
an  action  of  covenant,  or  to  enjoin  the  collection  of  any 
part  thereof.* 

§  39.  A  bill,  to  enjoin  a  judgment  on  account  of  usury, 
must  tender  the  amount  equitably  due.^  And  an  injunc- 
tion, on  the  ground  that  the  defendant  is  entitled  to  a 
credit  for  part  of  the  judgment,  should  be  with  a  proviso, 
that  the  plaintiff  may  proceed  by  execution  to  collect  the 
balance.^ 

§  40.  Payment  may  be  set  up  as  the  ground  for  an  in- 
juction.  As  where  a  payment  is  made  in  confidence  that 
it  will  be  credited,  and  the  credit  is  not  given,  but  judg- 
ment taken  for  the  whole  amount.'^  So,  where  prior  j  udg- 
ments  have  been  paid,  and  yet  the  holder  threatens  to 
levy  on  land,  the  holder  of  a  junior  judgment  may  have 
this  cloud  on  the  title  removed  by  injunction."^ 

§  41.  But  it  is  no  ground  for  relief  from  a  judgment, 
that  a  payment  on  a  bond  was  not  indorsed  on  the  bond. 
Such  defence  might  have  been  made  at  law.''  Kor  that 
the  party  did  not  prove,  on  the  trial,  payments  which  he 
alleges  he  had  made,  unless  he  shows  some  fraud  or  cir- 
cumvention, to  prevent  his  making  the  proof.^  So,  it  is 
held,  the  defendant  in  a  judgment  has  a  full  and  complete 
remedy  at  law,  by  supersedeas^  to  obtain  credit  for  a  part 

»  McRae  v.  Woods,  2  Wash.  Va.  "^  Shaw  v.  D wight,  IG  Barb.  536. 

80.  Sec  3  Story's  Eq.   194,  sect.  876  ; 

2  Reed  v.  Clarke,  4  Monr.  18.  ib.  196,  sect.  879  ;   Humphreys  v. 

3  Shelton  v.  Gill,  11  Ohio,  417.  Leggett,  9  How.  297. 

1  Hodges    V.  Planters',    c^'c,    7        '  Harnsbarger     v.    Kinney,    13 

GilKt.T.306.  Gratt.  511. 

5  Dickenson  v.  McDermott,   13        ^  Deaver  v.  Erwin,  7  Ired.  Eq. 

Tex.  348.  250. 


CH.  XVIII.]  NEW    TllIALS   IN   EQUITY.  607 

payment  of  the  judgment,  and  consequently  such  payment 
constitutes  no  ground  for  equitable  relief.^  So  equity  will 
not  interfere  with  a  judgment,  recovered  after  a  settle- 
ment between  the  parties,  prior  to  the  commencement  of 
suit.     The  remedy  is  by  appeal  or  error.^ 

§  42.  Analogous  to  payment,  as  a  defence,  is  that  of 
set-off. 

§  43.  The  allegations  in  a  bill  in  equity,  for  an  injunc- 
tion against  a  judgment,  that  the  defendant  is  indebted 
to  the  complainant,  that  he  is  insolvent,  and  that  the  de- 
mand sought  to  be  enforced  at  law  is  satisfied,  are  suffi- 
cient to  give  the  court  jurisdiction.^ 

§  44.  But  a  party  going  into  equity,  to  enjoin  a  judg- 
ment on  the  o-round  of  oflsets,  must  show  as  strong;  a  claim 
to  be  paid  the  offsets  as  if  he  were  suing  on  them  in  law 
or  equity.*  And  a  defendant  in  an  action  at  law,  having 
a  set-off  available  either  at  law  or  in  equity,  but  neglect- 
ing to  plead  it,  cannot  afterwards  make  it  a  ground  of 
relief  in  equity  from  the  judgment  against  him  in  such 
action,  without  showing  sufficient  excuse  for  his  neglect. 
That  he  was  advised  the  law  court  had  no  jurisdiction  of 
the  set-off,  is  no  such  excuse.^ 

§  45.  It  has  already  been  stated,  that  a  trial  at  law  and 

>  Perrine  «,  Carlisle,  19  Ala.  686.     Monr.  144;   Moore  v.  Gamble,  1 

2  Dunn   V.  Fish,   8  Black.  407.     Stoclit.  246. 

See  AVilliams  v.  Bradbury,  9  Tex.  *  Wallier  ».  Ayers,  1  Clarke,  449. 

487  ;  Holland  v.  Dale,  Minor,  2Go  ;  ^  pearce  y.  Winter,  &c.,  33  Ala. 

Crawford  v.  Thurmond,  3  Leigh,  68.  See  Pogue  v.  Shotwell,  2  Dana, 

85  ;  Buchanan  v.  Torrance,  11  Gill  281  ;  Griffith  v.  Thompson,  4  Gratt. 

&  J.  343  ;  Knox  v.  Coroner,  13  La.  147  ;  Hudson  v.  Kline,  9  ib.  379  ; 

An.  88 ;  Williams  v.  Bradbury,  9  Rives  v.  Rives,  7  Rich.  Eq.  353  ; 

Tex.  487 ;  Paddock  v.  Palmer,  19  Wellborn  v.   Bonner,  9  Geo.  82  ; 

Vt.  581  ;  Peatross  v.  McLaughlin,  Brady  v.  Hancock,  17  Tex.   361 ; 

6  Gratt.  64  ;  Bellamy  v.  Woodson,  Beall  v.  Brown,  7  Md.  393  ;  Lips- 

4  Geo.  175.  comb  v.  Winston,    1   Hen.  &,  M. 

3  Bettison  v.  Jennings,  3  Eng.  453. 
287.     See  Dickinson  v.  Chism,  2 


608  THE    LAW    OF    NEW    TRIALS.  [CII.  XVIII. 

a  judgment  founded  thereon  cannot  be  revised  by  a  court 
of  equity,  unless  there  are  special  equitable  reasons  for 
such  interference.  The  o-eneral  rule  is  applied,  of  res  ju- 
dicata and  estoppel.  Where  a  defence  has  been  made  to  a 
suit  at  law,  the  defendant  has  elected  his  tribunal ;  and, 
from  that  time,  he  must  make  his  entire  defence  in  that 
court,  if  such  as  may  be  heard  by  it.'  Thus,  in  case  of  a 
bill  for  an  injunction  against  a  judgment  and  a  new  trial, 
alleging  the  same  facts  pleaded  in  answer  to  the  suit  at 
law;  held,  the  judgment  was  conclusive,  and  the  bill  was 
dismissed.^  So  when  a  cause,  exclusively  of  legal  juris- 
diction, has  been  tried  at  law,  and  a  judgment  rendered 
against  the  defendant,  and  there  was  no  fraud  or  con- 
cealment by  the  plaintiff  at  law^,  chancery  has  no  juris- 
diction to  interfere.^  So,  as  we  have  already  seen  in  an- 
other connection,  the  execution  of  a  judgment  cannot  be 
enjoined  on  the  grounds  which  migJd  have  been  urged  as 
a  defence  to  the  original  action.^  So  where  a  party  first 
submits  to  try  at  law,  with  a  knowledge  of  the  facts  upon 
which  he  rests  in  support  of  his  title,  and  a  verdict  is 
rendered  against  him;  he  cannot  come  into  equity  and 
iile  his  bill  for  discovery  and  relief,  and  enjoin  the  opera- 
tion of  the  verdict,  until  he  can  have  another  trial  in 
equity  in  attempting  to  perfect  his  title.^ 

§  46.  Mutual  accounts,  if  not  complicated,  do  not  furnish 
ground  for  overhauling  a  judgment  at  law,  more  especially 
when  they  have  been  submitted  to,  and  passed  upon  by, 
the  court."  So  a  defendant,  who  has  demurred  to  the 
declaration,  will  be  regarded  as  having  elected  to  defend 
at  law^,  and  will  be  precluded  from  coming  into  equity  for 

>  Dickson?).  Richardson,  IG  Ark.  ^  Donaldson  v.  Kendall,  3  Geo. 

11^  Decis.    237.       Sec     Campbell     v. 

^Forsythe®.McCreight,10Rich.  Briggs,  4  Rich.  Eq.  370;  Sample 

Eq     308  •  Youguc  v.   Billups,   23  v.  Barnes,  14   llow.  70  ;  Lucas  v. 

Miss  407  Bank,  &c.,  2  Stew.  380. 

3  White  V.  Cahal,  2  Swan,  o.jO.  *>  Powell  v.  Stewart,  17  Ala.  719. 

*  Minor  v.  Stone,  1  La.  An.  283. 


CH.  XVIII.]  NEW   TRIALS   IN   EQUITY.  609 

relief,  in  reference  to  any  matter  of  defence  of  which  he 
might  have  availed  himself  in  a  court  of  law.^  So,  if  a 
defendant  at  law  makes  an  equitable  defence,  if  it  be  such 
as  courts  of  law  take  cognizance  of,  he  cannot  come  into 
chancery  for  relief,  unless  unavoidable  accident,  ignorance 
of  facts,  surprise,  or  fraud,  have  prevented  him  from 
making  his  defence  at  law.^  And  a  defence  cannot  be  set 
up  in  equity  which  has  been  fully  and  fairly  tried  at  law, 
although  it  may  be  the  opinion  of  the  court  that  the  de- 
fence ought  to  have  been  sustained  at  law.^ 

§  4:6a.  "With  reference  to  the  ])^^<^dings  in  cases  of  this 
nature;  chancery  will  not  restrain  a  judgment  upon  a  bill 
in  which  all  the  material  facts  are  charged  upon  informa- 
tion and  belief  only,  without  any  allegation  as  to  whence 
the  information  was  derived,  or  any  affidavit  connected 
with  the  bill.^  Nor  will  equity  enjoin  a  judgment  at  law 
and  grant  a  new  trial,  unless  the  complainant's  bill  sets 
forth  distinctly  his  causes  of  grievance.^  The  plaintiif  must 
state  the  cause  of  his  not  defending  at  law,  where  he  had 
a  legal  defence;^  more  especially  in  a  case  which  is  in 
general  exclusively  cognizable  at  law.^  And  a  court  of 
chancery  will  not  grant  relief  so  readily  against  a  judg- 
ment in  attachment  to  an  absconding^  as  to  an  absent  or 
non-resident  debtor ;  a  bill  should  therefore  state  in  which 
of  these  characters  the  attachment  was  taken  out  against 
the  defendant.^  So  in  a  bill  for  relief  against  a  judgment, 
on  the  ground  that  the  defendant  was  prevented  from  de- 
fending at  law  by  fraud  or  accident,  the  matter  of  fraud 


'  Arrington  v.  Washington,   14  *  Williams  ■y.Lockwood,  1  Clark, 

Ark.  218.  172. 

2  Burton  v.  Hynson,  14  Ark.  32  ;  ^  Gamble  v.  Campbell,  6  Fieri, 

7  Gill,  189.  347. 

'■*  Briesch  v.  McCauley,    7   Gill,  ^  Yancy  v.  Fenwick,  4  Hen.  & 

189.     See  White  v.  Crew,  IG  Geo.  M.  423. 

416  ;  Gough  v.  Pratt,  9   IVId.  526;  ?  Dilly  v.  Barnard,  8  Gill  &  J. 

Van  Mater  v.  Holmes,  2  Halst.  Ch.  170. 

575  ;  Money  i\  Jordan,   11   Eng.  ^  Moore  v.    Gamble,   1    Stockt. 

Law  and  Eq.  182.  246. 

39 


GIO  THE    LAW    OF   NEW    TRIALS.  [CH.  XVIII. 

or  accident  mnst  l)e  sot  fortli  with  certainty  and  precision, 
and  it  must  also  be  alleged,  that  the  fraud  or  accident  is 
unmixed  with  any  negligence  on  the  part  of  the  complain- 
ant.^ And  allegations,  that  a  judgment  was  obtained 
through  fraud  and  other  ill  j^radices^  are  too  general  to 
authorize  the  arrest  of  its  execution.^ 

§  46^.  An  injunction  cannot  stand  based  on  a  written 
agreement  alleged  to  be  lost,  where  the  bill  does  not  allege 
that  the  party  in  whose  custody  it  was  placed  has  been 
asked  to  produce  it,  nor  that  its  contents  can  be  proved, 
and  where  it  appears  that  the  party  who  executed  it  is 
dead,  and  its  existence  and  all  transactions  concerning  it 
are  fully  denied  by  the  answer.^ 

§  46c.  If  a  bill  of  injunction,  to  stay  proceedings  on  a 
judgment,  charge  the  plaintiff  at  law  with  having  failed 
to  do  an  act  on  which  the  equity  of  his  claim  depends, 
and  in  his  answer  he  take  no  notice  of  that  allegation; 
the  court,  on  the  hearing,  will  consider  this  an  admission 
that  he  has  not  done  the  act  in  question,  and  will  decree 
against  him  without  any  exception  to  the  answer,  or  any 
interlocutory  order,  taking  the  bill  for  confessed  in  part.^ 

§  46d.  "Where  a  bill  for  relief  from  a  judgment  at  law 
alleged,  as  a  reason  for  not  making  a  defence,  that  the 
plaintiff  was  deceived  by  his  attorney  as  to  the  time  of 
trial ;  held,  this  fact  must  be  proved,  although  uot 
answered  or  denied  by  the  answer.^ 

§  46c.  All  the  ijarties  to  a  decree,  the  execution  of  which 
is  sought  to  be  enjoined,  must  be  made  parties  to  the  in- 
junction bill.''     The  plaintiff  in  the  judgment  enjoined  is 

'  French  v.  Gamer,  7  Port.  549.         *  Page  v.  Winston,  2  Miinf.  298. 

2  Brooks  «.  Williams,  13  La.Au.        ^^  Cowan  v.  Price,  1  Bibb,  173. 
374.  ''  Heudrick  v.  Kobinsou,  7  Dana, 

3  Kent  V.  De  Bauu,  1  Beasl.  220.  105. 


CH.  XVIII.]  NEW    TRIALS   IN   EQUITY.  611 

a  necessary  party.\a)  So,  to  a  bill  by  a  purchaser  of  land 
from  a  judgment  debtor,  to  enjoin  the  judgment  creditor 
from  subjecting  the  land  to  his  judgment,  the  debtor  is 
a  necessary  party.-  So,  to  a  bill  for  relief,  from  a  judg- 
ment on  a  note  against  the  maker,  in  favor  of  an  asignee 
of  the  note,  the  payee  is  a  necessary  party.^  So  the 
assignee  of  a  judgment  is  a  necessary  party  to  a  bill,  to 
perpetually  stay  proceedings  thereon  for  equities  existing 
between  the  parties  previous  to  the  assignment.^  But  a 
surety  need  not  be  made  a  party  to  a  bill  by  the  principal, 
for  an  injunction  against  a  judgment.^  ISTor  a  sheriff,  to 
a  bill  brought  to  enjoin  the  execution  of  legal  process.^ 
The  clerk  and  sheriff  are  not  proper  parties  to  a  bill  for 
an  injunction  to  stay  execution.^ 

§  47.  The  distinction  is  made,  that  no  person  can  enjoin 
a  judgment  at  law,  to  which  he  is  is  not  a  party ;  but,  if 
he  is  aggrieved  by  the  proceedings  thereon,  he  should 
pray  for  an  injunction  to  the  execution.^ 

§  48.  It  is  held,  that,  where  property  of  one  is  levied  on 
to  satisfy  the  debt  of  another,  a  bill  of  injunction  may  be 
maintained  by  him  to  restrain  the  sale,  notwithstanding 
he  has  also  remedies  at  law,  and  although  the  sheriff,  by 

1  Daniel  v.  Haunegan,  5  J.  J.  ^  oiin  v.  Hungerford,  10  Ohio, 
Marsh.  48.  368. 

2  Scott  V.  Bennett,  1  Gihn.  646.  '  Edney  v.  King,  4   Ired.    Eq. 

3  Elston  V.  Blanchard,  3  Scam.  465. 

420.  ®  Jordan  v.  Williams,  3  Eand. 

^Munford  v.  Sprague,  11  Paige,  501.  See  Scott  v.  Whitlow,  30  111. 
438.  310. 

5  Bentley  v.  Gregory,  7  Mour. 
368. 


(a)  A.  ofFers  for  probate  a  paper  as  the  will  of  B.,  in  which  he  is  made 
executor  and  a  legatee.  Verdict  against  the  will.  A  bill  in  equity  is 
filed  by  C,  to  set  aside  this  verdict,  and  to  be  allowed  to  prove,  as  the 
will  of  B.,  all  that  part  of  the  paper  in  which  A.  has  no  interest,  alleging 
that  the  verdict  was  fraudulent  and  void.  A.  was  not  made  a  party. 
Held,  there  was  no  equity  in  the  bill.     Barksdale  v.  Brown,  16  Geo.  95. 


612  THE    LAW    OF   NEW    TRIALS.  [cn.  XVIII. 

reason  of  his  doubts  as  to  the  title  to  the  pro])crty,  takes 
an  indemnifying  bond.^  But  it  is  also  held,  that  a  sale  of 
personal  property  will  not  be  enjoined  at  the  suit  of  a 
third  person,  claiming  the  property,  but  he  will  be  left  to 
his  legal  remedy.^ 

§  49.  An  execution  in  ejectment  will  not  be  restrained 
at  the  instance  of  a  stranger  holding  a  paramount  title ; 
for,  if  his  title  is  good,  the  judgment  does  not  affect  him. 
It  makes  no  difierence,  that  after  judgment  the  defendant 
attorned  to  that  title  and  received  possession  under  it.^ 

§  50.  A  perpetual  injunction  may  be  granted  to  stay 
proceedings  on  a  judgment  at  law,  obtained  in  a  suit 
brought  in  the  name  of  a  })crson  not  interested,  for  the 
purpose  of  preventing  a  defence,  which  the  defendant  had 
against  the  real  plaintift'.^ 

§  51.  A  judgment  debtor  who  has  been  garnished  may 
compel  the  creditor  and  the  garnishee  to  interplead,  and 
may  have  the  execution  enjoined  until  the  interpleader 
is  determined.* 

§  52.  Equity  has  jurisdiction  to  enjoin  a  sale  of  land  on 
execution,  on  the  application  of  the  ownier  of  an  equitable 
lien  prior  to  the  lien  of  the  judgment;  and,  having  thus 
obtained  jurisdiction,  the  court  will  adjust  the  rights  of 
all  the  parties. 


G 


§  53.  Similar  questions  arise  in  connection  with  the 
obligation  of  suretyship.     Thus  equity  will,  in  favor  of 

'  Wilson  V.  Butler,  3  Mnnf.  HoO.        s  Henderson  v.  Garrett,  35  Miss. 

2  Poage   V.  Bell,  3   Rand.    58G.     554. 

Sec  Bowyer  v.  Crcigh,  3  Band.  25 ;  ^  Parkcr  v.  Kelly,  10  S.  &  M. 

Allen  V.  Freeland,  ib.  170;  Kelly  184.     See  Cox  v.  Mayor,  &c.,  17 

V.  Wiseman,  14  La.  An.  601.  Geo.  249  ;  Hamilton  v.  Adams,  15 

3  Harper  v.  Hill,  35  Miss.  03.  Ala.  590. 
''  Grcenleaf  v.  Maker,  2  Wash. 

C.  44,  393. 


CH.  XVIII.]  NEW   TRIALS   IN   EQUITY.  613 

a  surety,  enjoin  a  judo;ment,  suftbred  by  him  on  the 
promise  of  the  creditor,  that  it  shall  only  be  used  to 
enforce  a  settlement  with  the  principal,  and  will  give 
him  relief  if  the  judgment  is  too  large.^  So  where,  in 
consequence  of  representations  made  to  him  by  the  holder 
of  a  note,  the  surety  upon  it  ceases  to  maintain  a  valid 
ground  of  defence,  proceedings  under  a  judgment  so 
obtained  will  be  enjoined.^ 

§  54.  The  same  remedy  is  applied  in  cases  of  trust.  Thus 
a  bill  was  filed  for  an  injunction,  alleging  that  A.  made  a 
deed  of  property  in  trust  for  himself  and  wife,  remainder 
in  trust  for  their  children  ;  that  he  was  possessed,  at  the 
time  of  making  such  deed,  of  property  far  greater  than 
the  amount  of  his  liabilities ;  that  the  defendant  took  a 
note  from  A.,  executed  after  the  enrolment  of  the  deed 
(of  the  existence  of  which  deed  the  defendant  was  well 
aware),  and  has  since  taken  out  execution  on  a  judgment 
on  such  note,  and  caused  a  levy  to  be  made  on  the  property 
conveyed  in  trust,  alleging  that  such  conveyance  was  void 
as  to  creditors,  intending  thereby  to  injure  the  sale  of  such 
property  on  the  execution,  to  the  irreparable  injury  of  the 
complainants,  the  wife  and  child  of  the  grantor.  Held, 
the  bill  discloses  sufficient  ground  for  injunction.  Held, 
further,  that,  on  appeal  from  the  order  granting  such 
injunction,  the  case  must  be  decided  on  the  bill  alone, 
without  reference  to  the  answer.^ 

§  55.  The  precept  of  injunction  is  often  applied  directly 
to  executions  upon  judgments  at  law ;  and,  in  what  has 

•  Cage  v.  Cassidy,  33  How.  109.  &c.,  6  Ind.  138 ;  Bradley  v.  Lamb, 

2  Dew  V.  Hamilton,  23  Geo.  414.  Hardin,  537  ;  Buri^e  v.  Burns,  1 
See  Pike  v.  The  State,  &c.,  14  Ark.  Morris,  387  ,-  Paulding  v.  Watson, 
403.  21  Ala.  379;  Roberts  v.  Jordans,  4 

3  McCann  v.  Taylor,  10  Md.  418.  Munf.  488 ;  Winnie  v.  Grayson,  3 
See  further,  as  to  the  injunction  of  Tex.  439;  Price  ».  Johnson  County, 
judgments,  Henley  v.  Robertson,  4  15  Mis.  433;  Barada  v.  Carondelet, 
Yerg.  173;  McFarland  v.  Rogers,  16  Mis.  333;  Ford  v.  AVeir,  34  Mis. 
1  Wis.  453;    Dickerson  v.  Board,  563;  Denny  v.  Moore,  13  Ind.  418. 


614  THE   LAAV    OF   NEW    TRIALS.  [CII.  XVIII. 

been  said  with  reference  to  judgments,  it  has  not  been  found 
practicable  to  omit  some  cases  which  would  seem  equally 
applicable  to  executions.^  Thus,  if  a  valid  judgment  at 
law  be  iniquitously  used,  equity  will  annul  what  has  been 
improperly  done  under  it.'  So  chancery  will  grant  an 
injunction  to  prevent  a  party's  making  use  of  a  legal  writ 
of  execution  for  the  purpose  of  vexation  and  injustice.^ 
Or  restrain  the  sale  of  property  illegally  taken  in  execu- 
tion.'' So  the  sheriff  may  be  enjoined  from  paying  over 
money  received  from  the  sale  of  an  estate  under  executions 
issued  by  individual  creditors,  where  it  appears  that  the 
complainants  had  a  specific  lien  on  the  estate,  and  a 
preference  over  individual  creditors,  and  that  the  claim 
was  pending  and  undetermined.^ 

§  56.  But  equity  does  not,  as  of  course,  take  executions 
upon  judgments  at  law  into  its  own  hands,  as  such  power 
would  be  oppressive,  both  to  the  debtor  and  the  court.^ 
And  the  presumption  is,  that  the  court  which  renders  a 
judgment  is  competent  to  enforce  it  by  its  own  process, 
and  it  is  only  in  special  cases  that  chancery  interferes.^ 
So  a  debtor  cannot  resort  to  equity  to  enjoin  an  execution 
against  him,  if  he  has  had  an  opportunity  to  apply  to  the 
court  from  which  it  issued  for  redress.^  And  it  is  held, 
that  it  would  take  a  very  strong  case  of  fraud,  mistake, 
surprise,  or  accident,  to  induce  equity  to  interfere  with 
the  completion  of  a  sale  upon  an  execution  at  law.^   Thus 

'  See  Strong  v.  Daniel,  5  Tncl.  111.  83  ;  Malloryw.  Norton,  21  Barb. 

348  ;  Shiff  v.  Carprcth,  14  La.  An.  424  ;  Taylor  v.  Strong,  10  S.  &  M. 

801;    Sowle   v.   Pollard,    ib.    287;  63  ;  Sevier «.  McWliortcr,  27  Miss. 

Gleiscs  V.  McHatlon,  ib.  560.  442  ;   Moore   v.    Barclay,  16   Ala. 

2  Bissell  V.  Bozman,  2  Dev.  Ch.  158 ;   Dyer  v.  Armstrong,  5  Ind. 
160.  437. 

3  Colt  V.  Cornwell,  2  Root,  109.         s  Macon,  &c.  v.  Parker,  9  Geo. 
<  Keuyon  v.  Clarke,  2  R.  I.  C7.       377. 

5  Read   v.  Dews,   Charl.  R.  M.  ?  Ibid. 

355.      See   Petitt    v.   Shepherd,   5  ^  Beckloy  v.  Palmer,  11   Gratt. 

Paige,  493  ;    Grant  v.  Lathrop,  3  625. 

Fost.  67;  Cyrus  v.  Hicks,  20  Tex.  s  Skillman  v.  Ilolcomb,  1  Bcasl. 

483  ;   Davis  v.  ]Millaudon,   14   La.  131. 
An.  808 ;   Ballauce  v.  Loomis,  22 


CH.  XVIII.]  NEW    TRIALS   IN   EQUITY.  615 

the  claimant  of  personal  property,  taken  on  several  exe- 
cutions against  the  same  person,  cannot  maintain  a  bill  to 
enjoin  the  proceedings;  his  proper  remedy  is  at  law.'^  So 
an  injunction  will  not  be  granted,  to  stay  a  sale  under  an 
execution,  on  the  ground  of  usury,  that  being  a  good  de- 
fence at  law.^  ISTor  upon  the  allegation  that  the  judgment 
has  been  satisfied,  the  remedy  at  law,  in  such  case,  being 
prompt  and  adequate.^  So  a  bill  for  an  injunction  was 
brought  against  the  sheriff,  to  stop  the  sale  of  slaves  on 
execution,  alleging  a  bond  fide  purchase  on  the  part  of  the 
complainant,  previous  to  the  execution.  The  bill  was 
dismissed,  on  the  ground  that  the  remedy  was  at  law.^ 
So  an  agreement,  by  a  third  person,  with  the  defendant 
in  the  execution,  to  pay  it  off,  is  no  ground  for  an  injunc- 
tion against  the  enforcement  of  the  execution.^  So  equity 
has  no  jurisdiction  to  enjoin  the  sale  of  property  seized 
on  execution,  on  the  application  of  a  third  party,  claim- 
ing it  as  his  own,  though  he  is  a  trustee  of  the  property.^ 
And,  where  a  statutory  writ  of  possession  has  been 
awarded  by  a  court  of  law,  to  enjoin  the  issuing  of  such 
writ  in  favor  of  a  purchaser  of  lands,  at  a  sale  under  an 
execution  against  a  party  in  possession,  where  there  is  no 
allegation  or  pretence  that  waste  may  be  committed,  or 
irreparable  mischief  done,  is  held  to  be  a  clear  abuse  of 
the  writ  of  injunction,^  So,  where  the  object  of  a  bill 
will  be  answered  by  restraining  the  proceeds  of  a  sheriff's 
sale  in  his  hands,  the  sale  of  the  property  ought  not  to  be 
enjoined.^  IS'or  merely  on  the  ground  that  the  validity 
of  the  execution  or  the  justice  of  the  judgment  is  denied 
by  the  party  who  applies  for  the  injunction.^ 


'  Henderson  v.  Bates,  3  Blackf.  ^  Watkins  v.  Logan,  3  Mour.  20. 

460.  7  Blakeney  v.  Ferguson,  14  Ark. 

2  Lansing  v.  Eddy,  1  John.  Ch,  641. 

49.  ^  Receivers,   &c.,  3   Green   Ch. 

3  Ibid.  222. 

1  Keudrick  v.  Arnold,  4  Bibb,  s  Williams  v.  Wright,  9  Humph. 

235.  493.     See  Johnson  v.  The  Connec- 

5  Triplett'y.Turner,  2J.J.Marsh.  ticut,  &c.,  21  Conn.  148. 
475. 


616  THE    LAW    OF   NEW    TRIALS.  [CH.  XVIII. 

§  57.  Where,  pending  an  issue  to  try  tlie  riglit  to  per- 
sonal property  taken  on  execution,  other  executions  are 
issued  on  the  same  judgments,  and  levied  on  the  same 
property,  an  injunction  will  be  granted  to  restrain  pro- 
ceedings on  the  latter.^  So  an  injunction  will  issue,  at 
the  instance  of  an  execution  creditor,  to  restrain  the 
debtor  and  a  prior  execution  creditor,  from  selling  or  re- 
moving any  of  the  personal  property  levied  on,  unless  by 
sale  under  the  execution,  until  the  second  execution  is 
satisfied.^ 

§  58.  On  a  bill  to  enjoin  an  execution  against  particular 
property,  the  allegation  that  a  prior  execution  in  favor  of 
another  plaintiff  against  a  part  of  the  same  defendants 
had  been  enjoined,  is  not  ground  for  equitable  relief,  it 
not  appearing  but  that  the  ground  for  the  prior  injunc- 
tion had  reference  to  the  judgment  or  process  itself,  and 
not  to  the  property.^  And  two  executions  of  the  same 
kind  may  be  issued  upon  the  same  judgment,  and,  as 
courts  of  law  have  authority  to  prevent  abuse  of  their  own 
processes,  equity  will  not  interfere  for  that  purpose.^ 

'  Huntinj^ton  v.  Bell,  3  Porter,  Brown.  12  La.  An.  181;  Capcrtown 

51.  v.    Huddleston,    7    Humph.    453; 

2  Edgar  v.  Clcyenger.  1  Green  Gutsball  v.  Salsberry,  Wright,  137; 
Ch  358.  See  Norton  v.  Hickok,  25  Hammond  v.  St.  John,  4  Yerg. 
Conn.  350;  Barnes  ?j.  Dodge,  7  107  ;  Boale  t'.  Diggcs,  G  Gratt.  582; 
Gill   109  Boughton  v.  Bank,  «fec.,  2  Barb.Ch. 

3  Dunn  V.  Bank,  &c.,  3  Ala.  153.  458  ;  Nashua,  &c.  v.  Stimpson,  35 

4  Elliott  V.  Elmore,  16  Ohio.  37.  N.  H.  280  ;  Bryan  v.  Knight,  1 
See  further,  as  to  injunction  of  exc-  Tex.  180 ;  Bean  v.  Blanton,  3  Ired. 
cutions,  Pope  v.  Eakin,  3  Humph.  Ch.  59;  Heath  v.  Hand,  1  Paige, 
413;  0  Yerg.  34;  Wood  v.  Cruis-  339;  Bccklcy  v.  Palmer,  11  GraU. 
man,  G  Humph.  379  ;  Saunders  v.  G35  ;  Lovett  v.  Longmire,  14  Ark. 
Woods,  5  Yer<r.  143;  Warwick  v.  839  ;  Drake  v.  Jones,  37  ^lis.  438; 
Michael,  11  Gill  &  J.  153;  Kelly  «.  Oldham  v.  Erhart,  18  Tex.  147; 
Wiseman,  14  La.  An.  GGl ;  I^Iarriot  Dail  v.  Traverse,  8  Gill,  41. 

V.  Givens,  8  Ala.  G94 ;  McRae  ^^ 


It  is  no  part  of  the  plan  of  the  present  work  to  treat  of  proceedings 
or  remedies  in  equity,  except  so  far  as  they  are  connected  with  proceed- 
ino-3  at  law;  as  by  way  of  injunction  to  judgments  and  executions,  which 
makes  the  subject  of  the  foregoing  chapter.     There  is,  however,  a  pro- 


en.  XVIII.]  NEW   TRIALS   IN   EQUITY.  617 

cess  in  courts  of  equity,  for  obtaining  are  hearing,  somewhat  analogous 
to  the  new  trial  at  law,  of  which  the  following  account  is  given  by  ap- 
proved writers :  "  Courts  of  equity  have  a  class  of  cases  originating  in 
equity  jurisdiction,  and  directly  and  exclusively  under  their  own  control, 
called  '  Feigned  Issues.'     These  courts  have,  by  their  constitution,  the 
right  to  dispose  of  all  cases  upon  the  pleadings  and  proofs,  without  the 
intervention  of  a  jury;  but  it  is  usual,  in  matters  of  intricacy  and  im- 
portance, especially  those  involving  questions  of  fraud,  to  direct  an  issue 
at  law,  to  be  tried  by  a  jury,  to  inform  the  conscience  of  the  court.  The 
granting  or  refusing  a  new  trial,  on  a  feigned  issue,  is  wholly  a  matter 
of  discretion.    It  is  never  done  when  the  proof  is  clear  on  the  one  side 
or  the  other,  nor  when,  in  any  event,  the  verdict  could  be  but  of  little 
value.     The  practice  is  thus  laid  down  by  Sir  William  Blackstone : '  The 
Chancellor's  decree  is  either  interlocutory  or  final.     It  very  seldom  hap- 
pens that  the  first  decree  can  be  final,  or  conclude  the  cause;  for,  if  any 
matter  of  fact  is  strongly  controverted,  this  court  is  so  sensible  of  the 
deficiency  of  trial  by  written  depositions,  that  it  will  not  bind  the  parties 
thereby,  but  usually  directs  the  matter  to  be  tried  by  a  jury;  especially 
such  important  facts  as  the  validity  of  a  will,  or  whether  A.  is  the  heir 
at  law  to  B. — But,  as  no  jury  can  be  summoned  to  attend  this  court,  the 
fact  is  usually  directed  to  be  tried  at  the  bar  of  the  Court  of  King's 
Bench,  or  at  the  assizes,  upon  a  feigned  issue.     For,  in  order  to  bring  it 
there,  and  have  the  point  in  dispute,  and  that  only,  put  in  issue,  an  action 
is  brought,  wherein  the  plaintiff,  by  a  fiction,  declares  that  he  laid  a 
wager  of  £5  with  the  defendant,  that  A.  was  heir  at  law  to  B.,  and  then 
avers  that  he  is  so,  and  therefore  demands  the  £5.    The  defendant  admits 
the  feigned  wager,  but  avers  that  A.  is  not  the  heir  at  law  to  B.;  and 
thereupon  that  issue  is  joined,  which  is  directed  out  of  Chancery  to  be 
tried,  and  thus  the  verdict  of  the  jurors  at  law  determines  the  fact  in 
the  Court  of  Equity.'  "     3  Bl.  Comm.  452  ;  Graham  on  N.  T.  557.    The 
practice  referred  to  is  so  purely  one  of  equity,  and  at  the  same  time  has 
fallen  into  such  comparative  disuse  in  the  United  States,  more  especially 
■with  reference  to  the  details  mentioned  by  Blackstone,  that  any  further 
notice  of  it  would  be  superfluous,  and  wholly  foreign  from  the  general 
subject  of  Neio  Trials. 

The  verdict  of  a  jury,  in  a  trial  ordered  by  a  court  of  equity,  is  conclu- 
sive, unless  regularly  set  aside.    Franklin  v.  Greene,  2  Alien,  519. 


618 


THE   LAW    OF   NEAV    TRIALS. 


[CII.  XIX. 


CHAPTER  XIX. 

OTHER  FORMS  OF  REHEARING  THAN  NEW  TRIAL— WRIT 
OF  ERROR. 


1.  General  remarks.    Peculiari- 
ties of  American  laAV. 

2.  Nature  of  a  Avrit  of  error. 

3.  Ex  dehito  justiticB. 
5.  A  new  action. 

G.  Writ  of  error,  and  motion  in 
arrest  of  judgment. 

7.  Judgment  must  be  according 
to  the  course  of  the  common  lai.o. 

8.  Qualifications  of  this  rule. 

9.  Special  proceedings;  whether 
error  lies. 

10.  Grounds  of  the  writ. 

11.  Mere  irregularity. 

12.  Whether  for  acts  after  judg- 
ment.    Executions. 

18.  Error  of  foimdation,  pro- 
ceeding, or  judgment. 

18.  Error  coram  nobis  or  coram 
vobis. 

19.  Error  of  law  and  of  fact. 

24.  A  remedial  process ;  con- 
struction of  statutes. 

25.  Cases  of  discretion. 

2G.  Questions  of  amount;  ad 
damnum,  interest,  costs,  &c. 

32.  Defects  in  the  declaration ; 
variance  ;  misjoinder,  &c. 

35.  Right  of  aj-)pcal,  whether  a 
writ  of  error  lies  in  case  of. 

43.  The  judgment  must  hcfi7ial. 

50.  The  plainlitf  in  error  must 
have  been  injured  l)y  the  judgment; 
voluntary  nonsuit,  &c. 

53.  The  error  must  be  substantial, 
not  merely  formal ;  limitations  and 


qualifications  of  the  rule  ;  judgment 
in  lavor  of  the  plaintiff  in  error. 

58.  The  error  must  appear  upon 
the  record ;  what  constitutes  the 
record  ;  papers  used  or  filed,  parol 
evidence,  &c. 

02.  The  error  must  appear,  af- 
firmatively. Judgment  presumed 
to  be  correct. 

G4.  Wlicn  the  right  to  a  writ  of 
error  is  waived. 

G8.  Error  in  case  of  default. 

69.  For  want  of,  or  defect  in, 
service  of  the  writ ;  joint  defend- 
ants, &c. 

74.  In  case  of  arbitration. 

77.  Eff'ect  of  a  writ  of  error  upon 
the  judgment  and  the  rights  of  the 
parties  ;  supersedeas  of  execution, 
&c. 

86.  Course  of  proceeding  upon  a 
writ  of  error  ;  assignment  of  errors; 
allegations  of  the  Avrit,  &c. 

103.  Parlies  ;  must  be  interested; 
joint  parties  ;  in  case  of  death  ;  pur- 
chasers, creditors,  agents,  &c. 

IIG.  Summons  and  severance. 

134.  IMisnomer. 

136.  Service  of  writ  of  error. 

139.  Defences;  dismissal:  in  nul- 
lo  est  erratum  ;  release  of  errors. 

158.  Judgment  upon  a  writ  of 
error  ;  reversal  in  part ;  remanding 
of  the  case,  and  proceedings  of  the 
court  below  ;  miscellaneous  ]ioints. 

188.  Successive  writs  of  error. 

196.  Error  in  criminal  cases. 


§  1.  As  a  natui-al  and  useful  sequence  to  the  foregoing 
treatise  upon  new  trials,  we  proceed  to  present  a  concise 
view  of  other  forms  of  rehearing ;  including  the  writ  of 
error,  certiorari,  appeal,  audita  querela,  and  mandamus. 


CH.  XIX.]  WRIT   OF   ERROR.  619 

These  subjects,  more  especially  error  and  appeal,  have 
furnished  abundant  material  for  controversy  and  judicial 
action  in  the  United  States.  The  cases  are  numerous,  and 
the  points  decided  nice  and  various.  A  large  proportion 
of  them,  however,  are  not  of  general  applical)ility,  turning, 
to  a  great  extent,  upon  the  construction  of  local  statutes, 
which  seem  to  have  made  these  forms  of  remedy  subjects 
of  very  special  care  and  interest.  Indeed  American  legisla- 
tion has  largely  broken  down  the  common  law  boundaries 
between  different  modes  of  rehearing.  The  grounds  of 
new  trials  of  which  we  have  treated  at  length  in  the  fore- 
going pages,  are  in  many  of  the  States  made  by  statute 
grounds  of  appeal  or  error.  Appeal,  not  a  common  law 
remedy,  but  originally  designed  for  the  rehearing  of 
questions  of  fad^  is  now  often  but  another  name  for  a 
review  of  decisions  upon  jjoints  of  law  ;  and  in  some  of 
the  States  error^  although  including  some  additional  causes 
of  relief,  means  substantially  the  same  thing  as  exceptions, 
or  motion  for  new  trials  which  terms  it  has,  for  the  most 
part,  superseded.  It  is  proposed  to  confine  the  present 
view  of  the  several  proceedings  to  such  points  as  are 
independent  of  express  statutory  regulation,  and  chiefly 
to  those  which  do  not  fall  within  the  substantial  range 
oinew  trial;  although,  as  will  be  seen,  the  latter  limita- 
tion is  not  always  strictly  observed.  For  the  reason  stated, 
topics,  which  occupy  a  large  space  in  the  American  reports, 
are  here  presented  in  a  comparatively  very  small  compass. 

§  2.  A  writ  of  error  is  an  original  writ,  in  the  nature 
of  a  commission  to  the  judges  of  the  court  from  which  it 
issues,  authorizing  and  requiring  them  to  examine  the 
grounds  upon  which  a  judgment  either  in  their  own  or  an 
inferior  court  was  given,  in  the  case  specified  in  the  writ, 
and  upon  such  examination  alter,  reverse,  or  affirm  the 
same  according  to  ]aw.^ 

'  Howe's  Prac.  460. 


620  THE   LAW   OF   NEW    TRIALS.  [CH.  XIX, 

§  3.  In  civil  cases,  the  writ  of  error  is  ex  dehito  jusfitice, 
and  may  be  sued  out  without  motion.^a)  And  it  is  held, 
that,  where  such  a  writ  is  sent  to  the  clerk  of  the  court 
below,  commanding  him  to  send  up  a  transcript,  &c.,  he 
has  no  right  to  withhold  it  until  his  fees  for  making  it 
out  are  paid,  but  must  obey  the  writ.^ 

§  4.  By  the  adoption  of  the  common  law,  the  writ  of 
error  is  held  to  have  been  introduced  into  a  State  as  a 
part  of  that  system.^ 

§  5.  Uidike  the  application  for  a  new  trial,  a  writ  of 
error  it  held  to  be  a  neiu  action.* 

§  6.  In  addition  to  its  analogy,  under  the  effect  of  the 
statutory  law,  to  the  motion  for  new  trial,  a  writ  of  error 
is  in  many  respects  like  a  motion  m  arrest  of  judgmevt  ;^ 
and  may  often  be  adopted  as  an  alternative  remedy,  where 
such  motion  might  at  the  election  of  the  party  have  been 
effectually  made.(6) 

§  7.  To  sustain  a  writ  of  error,  the  judgment  must  have 
been  rendered  in  a  court  of  record^  according  to  the  course  of 
the  common  law.^{c)     Thus,  where  a  new  jurisdiction  is 

'  2    Salk.    504  ;     Pembroke    «.  ^  Sweeney  v.  The  People,  28  111. 

Abiuti;ton,  2  Mass.  142.  208. 

2  Thorn  fl.  Clendouin,  7Eng.  60.  ^  Aurentz  «.   Porter,    48   Penn. 

3  ]\loorc  V.  Harris,  1  Tex.  3G.  335  ;    Commonwealth  v.  Haas,   57 
«  Ripley  v.  IMorris,  2  Gilm.  381  ;  Penn.  443. 

"WashiugtouB.Durant,  7Wall.  694. 

(a)  If  an  alleged  error  is  not  the  subject  of  a  writ  of  error  or  appeal, 
it  is  then  without  remedy,  and  must  not  be  regarded  as  an  error.  Loomis 
V.  Lane,  29  Penn.  242.  If  a  sentence  of  a  court  of  competent  jurisdiction 
is  only  voidable,  the  proper  remedy  is  by  a  writ  of  error,  not  habeas 
corpus.    Shaw,  7  Ohio  (N.  S.),  81. 

(fe)  A  decision,  overruling  a  motion  in  arrest  of  judgment,  which 
motion  contained  questions  of  fact  and  of  law,  and  leaving  it  uncertain 
whether  the  court  found  the  motion  untrue,  or  judged  it  insufficient;  is 
erroneous.     Bird  v.  Bird,  2  Root,  411. 

(c)  Error  lies,  in  New  Jersey,  upon  proceedings  not  according  to  the 
course  of  the  common  law.     Evans   v.  Adams,  3  Green,  373.     As   to 


CH.  XIX.]  WRIT   OF   ERROR.  621 

created  by  statute,  authorizing  a  proceeding  not  known 
to  the  common  law  ;  error  will  not  lie,  but  certiorari  is  the 
proper  remedy.  As,  an  allowance  against  an  executor  or 
administrator.^  So  a  writ  of  error  will  not  lie  upon  a 
statutory  judgment,  arising  upon  the  forfeiture  of  a  forth- 
coming bond.2 

§  8.  Although  proceedings  in  the  commencement  in  a 
lower  court  were  not  in  common-law  form,  yet  if,  on  appeal, 
the  trial  assumes  substantially  that  nature,  the  writ  of 
error  will  lie.  Thus  appeal  was  had  from  a  decree  of  the 
Probate  Court  allowing  a  will,  and  a  substantial  issue 
was  tried  in  the  Circuit  Court,  though  no  new  common- 
law  issue  was  made  there.  Held,  such  proceedings  were 
governed  by  the  analogies  of  common-law  trials,  and  a 
writ  of  error  would  lie  to  the  Supreme  Court,  without 
regard   to  the   precise  form  of  the  proceedings   in  the 

'  Campbell  v.  Strong,  1  Hemp.  ^  Smiser  v.  Robertson,  16  Ark, 
195.  599. 

equity  jurisdiction  in  connection  with  writs  of  error,  see  Wilson  v.  iEtna, 
&c.,  3  Ind.  557 ;  Delaplaine  v.  Madison,  7  Wis.  407.  In  New  York  it 
was  held,  that  a  court  of  chancery  cannot  supersede  a  writ  of  error, 
quia  improvidc  emanavit,  not  even,  as  it  seems,  where  the  prerequisites 
required  by  the  statute,  such  as  filing  a  certificate  of  counsel,  have  not 
been  complied  with.  Yates  v.  The  People,  6  Johns.  337.  Whether  the 
writ  is  properly  granted  or  not,  is  a  question  for  the  decision  alone  of  the 
court  in  which  it  is  returnable.  Where  the  chancellor  has  committed  a 
person  for  contempt,  and  the  Supreme  Court,  the  prisoner  being  brought 
before  them  on  habeas  corpus,  refuse  to  discharge  him,  and  a  writ  of 
error  is  brought;  the  Court  of  Errors  may  inquire  into  the  validity  of  the 
order  of  the  Court  of  Chancery,  awarding  the  attachment,  notwithstanding 
an  appeal  might  have  been  brought  on  that  order.  Yates  v.  The  People, 
6  Johns.  337.  A  court  of  errors  will  not  so  readily  interfere  with  the 
discretion  of  a  court  of  chancery  as  with  that  of  a  court  of  law,  although 
the  duties  are  discharged  by  the  same  person.  Johnson  v.  Holt,  3  Kelly, 
117.  Where  judgment  is  recovered  at  law,  notwithstanding  the  de- 
fendant has  an  equitable  defence,  he  is  not  precluded  from  afterwards 
seeking  relief  in  equity,  by  suing  out  a  writ  of  error,  on  which  the  judg- 
ment is  affirmed.     McClure  v.  Colclough,  5  Ala.  65. 


622  THE   LAW    OF   NEW    TRIALS.  [CII.  XIX. 

circuit.^  So  a  writ  of  error  lies,  though  the  jurisdiction 
and  mode  of  process  depend  upon  a  statute,  if  the  pro- 
ceedings are  according  to  the  common  law.^  So  in  the 
proceedings  under  tlie  act  of  "forcible  entries  and  de- 
tainers," instituted  before  county  commissioners,  thence 
appealed  to  the  Circuit  Court,  and  then  brought  by  writ 
of  error  to  the  Supreme  Court,  on  a  motion  to  quash  the 
writ ;  held,  that,  granting  that  the  proceedings  in  their 
inception  were  summary,  yet,  after  their  arrival  in  the 
Circuit  Court  they  were  according  to  the  course  of  the 
common  law,  and,  as  certiorari  only  brings  up  the  question 
of  jurisdiction  in  the  court  below,  error  is  the  only  method 
of  reviewing  the  charge  of  the  judge.^ 

§  9.  It  is  held  that  a  writ  of  error  does  not  lie  to  the 
Probate  Court  ;*  nor,  in  Michigan,  from  an  order  of  the 
Circuit  Court,  on  an  appeal  from  a  decree  of  the  Probate 
Court,  removing  an  administrator  f  nor  to  a  court  martial  f 
nor  to  reverse  a  judgment  upon  a  petition  for  a  new  high- 
way f  nor  in  case  of  certiorari ^{a)  mandamus^  procedendo, 

'  Baptist,  &c.  Union  v.  Peck,  9        ^  Smith  «.  Rice,  11  Mcass.  507. 
Mich.  445  ;  Waters  ®.  Randall,  8        ^  Holbrook  v.  Cook,  5  Mich.  325. 
Met.  133.  s  Dunbar,  14  Mass.  393. 

2  Drowue  i).  Stimpson,  3  Mass.  ^  Dorchester  v.  Wentworth,  11 
441.  Fost.  451. 

3  Parkers.  Copland,  4 Mich.  538. 

(a)  "Where  an  ex  parte  application  had  been  made  to  the  presiding 
judge  of  the  court  below,  to  sanction  a  petition  for  certiorari,  which 
application  was  granted,  but,  before  the  grounds  of  error  alleged  in  the 
petition  had  been  considered  and  decided  upon  by  the  court,  the  plaintiff 
in  error  sued  out  his  writ  of  error  to  the  Supreme  Court ;  a  motion  to 
dismiss  the  writ  of  error,  on  the  ground  that  it  had  been  prematurely 
sued  out,  was  allowed  by  the  court.  Van  Ness  v.  Cheeseborough,  11 
Geo.  377.  On  a  writ  of  error  in  cases  taken  to'  the  Circuit  Court  on 
certiorari,  the  Supreme  Court  has  no  jurisdiction,  like  that  of  the  Cir- 
cuit Court,  to  inquire  into  the  evidence  exhibited  in  the  inferior  tribu- 
nal, but  can  correct  errors  of  law  only.  Elliott  v.  Whitmore.  5  Mich. 
532.  Error  lies  to  reverse  a  judgment  in  scire  facias,  which  is  shown 
by  the  record  to  have  been  commenced  after  the  time  limited  by  the 
statute.     Gass  v.  Bean,  5  Gray,  397. 


CH.  XIX.]  WRIT   OF   ERROR.  623 

or  denial  of  a  writ  of  j^rohibition  ;  uor,  as  is   sometimes 
held,  in  case  of  habeas  corpus.\a) 

§  10.  The  OTOunds  for  a  writ  of  error  are,  of  course, 
very  numerous  and  various.^ 

§  11.  It  is  held  that  a  mere  irregularity  is  not  ground 
of  error,^  hut  of  amendment,  on  motion,  by  the  court 
where  the  proceedings  are  had.* 

§  12.  In  general,  it  is  said,  error  does  not  lie  for  any 
act  after  judgment.^ 

§  12o.  But  error  lies  on  an  award  of  execution;^  or  to 
remove  an  order  of  court  to  stay  indefinitely  an  execution 

1  Mayor,  &c.  v.  Shaw,  14  Geo.  436 ;  Toralin  li.  State,  19  ib.  9 ; 
163 ;  Hammond  v.  The  People,  33     Saltmarsh  v.  Bird,  ib.  665. 

111.  446  ;  Laytou  v.  State,  4  Dutch.        ^  Payne  v.  Collier,  6  Mis.  331. 
575  ;  Coston  v.  Coston,  35  Md.  500;        «  Claggett  v.  Simes,  11  Post.  33. 
State  V.  Boyle,  ib.  509.     See  City        ^  Frazier  v.    Campbell,    5   Tex. 

of  London,  8  Co.  131 ;  Com.  Dig.  375  ;  Davis  «.  Thomas,  ib.  389  ;  Co. 

Pleader  3,  B.  7 ;  Yates,  6  John.  Lit.  388  b;    Bowen  v.  Lanier,    3 

337;  Holmes  v.  Jamison,  14  Pet.  Tay.  341. 
540 ;  People  v.  Hessing,  38  111.  410.        «  Harger  v.  Commissioners,  &c., 

2  See  Braley  v.  Clarke,  18  Ala.  13  Penn.  351. 


(a)  The  weight  of  authority,  however,  would  seem  to  be  otherwise. 
Under  the  act  of  Indiana,  1847,  p.  113,  either  party  to  a  writ  of  habeas 
corpus  may  sue  out  a  writ  of  error  from  the  Supreme  Court  to  the  judg- 
ment thereon  of  one  of  the  associate  judges  of  the  court  trying  the  same, 
the  matter  having  been  tried  before  such  judge.  Sherry  v.  Winton,  1 
Cart  .6.  So  a  prisoner,  who  has  applied  for  a  writ  of  habeas  corpus 
to  be  let  to  bail,  and  been  refused  by  the  judge,  may  prosecute  a  writ  of 
error  from  such  judgment  to  the  Supreme  Court.  Lumm  v.  State,  3 
Ind.  293.  In  Mississippi,  a  writ  of  error  will  lie  to  the  judgment  of  a 
circuit  judge,  rendered  in  vacation,  on  a  writ  of  habeas  corpus,  for  pos- 
session of  a  slave.  Covington  v.  Arrington,  32  Miss.  144.  •  So,  in  Georgia, 
error  lies  from  the  inferior  to  the  Supreme  Court  in  cases  of  habeas  cor- 
pus. Livingston  v.  Livingston,  24  Geo.  379.  The  writ  does  not  lie  in 
case  of  contempt.  State  v.  Galloway,  5  Cold.  326.  Nor  of  divorce. 
Parmenter  v.  Parmenter,  3  Head,  225.  It  lies  in  case  of  bastardy. 
People  V.  Noxon,  40  111.  30. 


624  THE   LAW    OF   NEW    TRIALS.  [CIL  XIX. 

Upon  a  jiulixnieiit;'  or  tea  decif^ion  that  the  plaintifl"  shall 
not  pay  costs,  and  quashing  an  execution  issued  tlierefor, 
on  a  judgment  for  such  costs,  which  was  afterwards  an- 
nulled ;2  or  upon  an  order  made,  settling  the  priority 
among  executions  against  the  same  defendant,  and  order- 
ing one  to  be  satisfied  out  of  the  proceeds  of  sale  in  pre- 
ference to  others.3  Qq^  though  the  right  of  a  court  of 
common  pleas  to  stay  execution  is  undoubted,  an  order 
to  stay  an  execution  indefinitely,  as  it  is  a  final  adjudica- 
tion of  the  plaintiff's  right,  is  subject  to  revision.-*  And, 
in  general,  error  may  be  brought  to  set  aside  an  erroneous 
execution.'(a) 

§  126.  Error  lies,  where  the  judgment  does  not  follow 
the  verdict.^  But  there  can  be  no  writ  of  error  u})on  a 
verdict,  unless  there  is  a  judgment.^ 

§  13.  Another  form  of  statement  of  the  grounds  for 
writ  of  error  is,  that  it  must  be  for  error  in  the  founda- 
tion, proceeding,  judgment,  or  execution.^ 

§  14.  Thus,  in  reference  to  foundation^  where  a  writ  of 
review  is  sued  out  by  a  party  not  entitled  to  it.^ 

§  15.  In  reference  to  the  jprocecdings  ;  failure  to  continue 
an  action  as-ainst  an  absent  defendant.^"' 


'  O'llara  v.  Pennsylvania,  &c.,  2  See  Brown  v.  Chase,  4  Mass.  436  ; 

Grant,  241.     See  Johnson  v.  liar-  Clark  v.  Lamb,  G  Pick.  512;  Whit- 

vey,  4  Mass.  483.  ini?  v.  Cochran,  9  Mass.  532  ;  Petrie 

2  Norcross  v.  Boulton,  1    Ilarr.  v.  Ilannay,  3  T.  K.  Go9. 

310.  '  Rule   v.  Ilaydcn,  3    B.   Monr. 

»  Woodrufl'  t).  Chapin,  3   Zabr.  319;  Wharton  w.  State,  41  Miss.  G80. 

555.  «  Co.  Lit.  288  b. 

*  Patterson  ^). Patterson,  27  Penn.  ^  Hall  v.  Wolcott,  10  Mass.  218. 
40.  '"  Blanchard  «.AVild,  1  Mass.  342 ; 

*  Phillips  V.  Russell,  1  Hemp.  02.  Bullard  i\  Brackett,  2  Pick.  85. 
6  Holmes  v.  Wood,  G  Mass.    1. 

(a)  It  is  held  that  an  order  of  the  court  below  to  quash  an  execution 
is  not  a  judgment  to  which  a  writ  of  error  will  lie.  McCargo  v.  Chap- 
man, 20  How.  555. 


CH.  XIX.]  WRIT    OF   ERROR.  625 

§  IG.  Ill  reference  to  the  Judgment ;  where  judgment  is 
given  against  an  infant  or  non  compos,  without  a  guardian.' 

§  17.  But  the  writ  was  disallowed,  where  a  judge,  after 
allowing  exceptions,  entered  judgment  at  the  next  term.^ 
So  in  case  of  omission  to  enter  continuances  upon  the 
docket.^ 

§  18.  A  writ  of  error  generally  lies,  either  to  an  inferior 
court,  or  to  the  same  court,  by  which,  or  l)y  a  judge 
thereof,  the  error  has  been  committed.  In  the  former  case 
it  is  error  "com?7i  vobis ;"  in  the  latter  '■'■coram  7iohis.'\a) 

'  Knapp  V.  Crosby,  1  Mass.  479 ;        2  Brown  v.  Bull,  3  Mass.  311. 
White  V.  Palmer,  4  lb.  147.  »  Weston,  11  Mass.  417. 


(a)  In  Maryland  a  writ  of  error  coram  nobis  lies  to  correct  an  error 
in  fact,  in  the  same  court  where  the  record  is ;  but  the  same  court  can- 
not correct  an  error  in  law,  eitlier  by  or  without  a  writ  of  error ;  such 
error  should  be  redressed  by  another  court.  Hawkins  v.  Bowie,  9  Gill 
&  Johns.  428.  A  writ  of  error  coram  nobis  lies  to  correct  an  error  in 
fact,  or  in  process,  or  arising  through  default  of  the  clerk,  to  the  same 
court  where  the  record  is.  As  where  the  defendant,  being  under  age, 
appeard  by  attorney,  or  where  the  defendant  or  plaintiff  was  a  married 
woman  at  commencement  of  suit.  Kemp  v.  Cook,  18  Md.  130.  In 
Iowa,  a  writ  of  error  coram  nobis  may  be  brought  in  the  court  where 
judgment  was  rendered,  when  the  error  was  not  the  fault  of  the  court, 
but  of  the  clerk  or  other  ministerial  ofiScer,  or  was  error  in  fact.  Phillips 
V.  Russell,  1  Hemp.  62.  It  is  only  an  error  in  fact,  committed  by  the 
inferior  court  in  its  own  judgments,  that  can  be  reviewed  by  the  writ  of 
error  coram  nobis.  McKinney  v.  Western,  &c.,  4  Iowa,  420.  The 
ofBce  of  that  writ  is  to  correct  a  material  error  in  fact,  committed  be- 
fore or  in  the  presence  of  "  us,"  and  not  before  "you;"  or  an  error  com- 
mitted by  the  court  or  tribunal  from  which  the  writ  issues,  and  not 
by  one  to  which  it  issues.  A  writ  in  the  nature  of  a  writ  of  error  coram 
nobis  exists  in  New  York,  under  another  name ;  but  the  provisions 
of  the  Rev.  Sts.  relative  to  writs  of  error  do  not  apply  to  this  writ. 
Smith  V.  Kingsley,  19  Wend.  G20.  Although  a  writ  is  not  demaudable 
of  right,  yet,  if  error  in  fact  is  shown  to  exist,  it  will  always  be  awarded. 
Higbie  v.  Comstock,  1  Denio,  652.  On  application  for  such  writ,  the 
court  cannot  look  into  the  cause  of  action ;  and,  where  it  was  shown 
40 


626  THE   LAW    OF   NEW    TRIALS.  [CII.  XIX. 

§  19.  Error  may  be  either  of  law  or  of  fact.  As  we  have 
already  explained,  in  American  practice,  errors  of  fact,  as 
contradistinguished  from  those  wdiicli  appear  upon  the 
record,  and  which  alone  are  strictly  of  law^,  may  be  revised 
and  corrected,  in  many  of  the  States,  by  writ  of  error, 
precisely  as  they  might  be,  independently  of  statute,  by 
application  for  a  new  trial.  It  must  be  admitted,  that 
the  distinction  between  errors  in  law  and  in  fact  is 
somewhat  shadowy ;  and  it  wnll  be  presently  seen,  that 
both  alike  must  be  brought  to  the  notice  of  the  corrective 
court,  as  a  part  of  the  record ;  whether  so  inserted,  as  of 
course^  by  the  lower  court  or  its  clerk ;  or  upon  the  motion 
of  the  party  who  complains  of  the  error.  Possibly  this  last 
distinction  may  approximate  as  nearly  as  is  practicable 
to  the  difterence  between  errors  of  law^  and  errors  of 
fact.(rt) 

that  the  contract  was  made  by  the  defendant,  while  an  infant,  by  fraud- 
ulently concealing-  his  infancy,  and  he  now  sought  to  reverse  the  judg- 
ment, because  he  had  appeared  by  attorney ;  held,  he  was  entitled  to 
the  writ.  Ibid.  If,  on  such  application,  the  plaintiff  elects  to  vacate 
the  judgment,  he  will  be  permitted  to  do  so,  and  the  application  will 
then  be  denied.     Ibid. 

(a)  See  Bridendolph  v.  Zellers,  3  Md.  32,5.  It  is  sometimes  held,  that 
a  writ  of  error  lies  only  for  error  of  law.  Ward  v.  Bull,  1  Branch,  271. 
An  error  in  fact,  in  the  judgment  of  a  court,  cannot  be  brought  up  as 
an  error  in  law.  Walworth  v.  Walworth,  Wright,  673.  It  is  generally 
held  that  error  in  fact  and  error  in  law  cannot  be  joined  in  one  assign- 
ment. If  they  are  so  joined,  it  may  be  taken  advantage  of  by  demurrer. 
Freeborn  v.  Denham,  2  Halst.  190;  Fitch  v.  Lothrop,  2  Root,  524; 
Clark  V.  Bell,  2  Litt.  1G2  ;  Moody  v.  A'reeland,  7  AVend.  55 ;  Brents  v. 
Barnett,  3  Bibb,  251.  But  see  vStarbird  v.  Eaton,  42  Maine,  569.  Errors 
in  fact,  and  in  law,  may  be  joined  in  a  motion  to  quash  an  execution,  or 
ill  a  rule  to  show  cause  M-hy  an  execution  or  sale  shall  not  be  quashed, 
though  not  in  a  writ  of  error  coram  nobis.  Logan  v.  Steele,  7  J.  J. 
Marsh.  41.  (See  p.  627.)  In  Michigan,  the  Supreme  Court  has  jurisdiction 
over  both  errors  of  fact  and  errors  of  law.  The  constitutional  provision 
for  trial  of  writs  of  error,  in  the  Supreme  Court,  gives  necessarily  by 
implication  all  the  common  law  means  to  execute  such  provision.  If 
necessary,  a  venire  may  be  issued  for  a  jury  to  try  the  issue  of  fact  in 
the  Supreme  Court,  or  it  may  be  sent  to  the  proper  Circuit  Court  for 


en.  XIX.]  WRIT   OF   ERROR.  627 

§  20.  With  reference  to  the  error  complained  of,  as  it 
originally  existed,  and  not  in  respect  to  the  form  in  which 
it  is  finally  presented ;  errors  of  fact  are  those  not  appearing 
upon  the  face  of  the  record ;  as  that  the  defendant,  heing 
an  infant,  appeared  by  attorney;  that  the  j^laintitf  or 
defendant  was  a  married  woman,  or  had  deceased;  or 
that  the  defendant  was  out  of  the  State,  or,  contrary  to 
law,  defaulted  at  the  first  term.^ 

§  21.  Errors  in  law  are  said  to  be  either  common  or 
special.  The  former,  that  the  declaration  is  insufiicient  to 
sustain  the  judgment,  and  that  judgment  was  rendered 
for  the  wrong  party.  The  latter  are  particular  defects, 
apparent  on  the  record. 

§  22.  The  plaintiff  may  assign  several  errors  in  law,  but 
only  one  in  fact.^  Errors  of  fact  and  law  cannot  be  joined ; 
as  the  former  are  to  be  tried  by  the  jury,  the  latter  by  the 
court,^    (See  p.  626  n.) 

§  23.  A  writ  of  error  to  obtain  relief  from  an  illegal 
taxation  of  costs,  a  memorandum  of  which  taxation  has 
been  filed  in  the  case,  but  not  incorporated  in  the  record, 
must  assign  the  error  as  one  of  fact.  And  where  the 
executor  of  a  plaintift'  deceased  was  admitted  to  come  in 
and  prosecute  the  suit ;  and  the  defendant  was  defaulted, 
and  afterwards  brought  a  writ  of  error,  assigning  as  errors, 
that  it  appeared  by  the  record  that  the  suit  abated  by  the 
plaintiff"'s  death,  and  that  illegal  costs  were  taxed:    the 

'  See  Kemp  W.Cook,  18  Md.  130;        »  2  Bac.  Ab.  217;    2   Ld.   Ray 

Camp  V.  Bennett,  16  Wend.  48.  883  ;   Jetfry  v.  Wood,  1  Str.  439. 

2  2  Tidd's  Prac.  1140.  But  see  Metcalf  t;.  Fonts,  27  111. 

110. 


trial.  Neither  the  constitution  nor  the  statutes  give  power  to  the 
Circuit  Court  to  issue  a  writ  of  error  in  any  case.  Errors  of  fact  may 
be  assigned  on  a  writ  of  errors  of  law,  when  the  court  has  the  jurisdiction 
of  both  classes  of  errors.     Teller  v.  Wetherell,  G  Mich.  46. 


G28  THE    LAW    OF    NEW    TRIALS.  [CU.  XIX. 

court  refiiseil  to  dismiss  tlie  writ,  for  misjoinder  of  errors 
ill  law  and  errors  in  fact.' 

§  24.  A  writ  of  error  is  held  purely  remedial.  Hence 
the  Mass.  St.  1851,  c.  87,  providing  that  in  criminal  cases 
the  court  reversing  a  judgment  may  render  the  ]>roper 
judgment,  relates  to  writs  of  error  on  past  as  well  as 
future  judgments;  and  such  a  construction  does  not  make 
it  an  ex  post  facto  nctJ  So  a  (N.  Y.)  statute,  which  provides 
that  the  Court  of  Appeals  shall  have  power  to  review,  by 
writ  of  error,  any  judgment  rendered  by  the  Supreme  Court 
in  favor  of  any  defendant  charged  with  a  criminal  ofl'ence, 
includes  all  judgments  rendered  after  the  passage  of  the 
act,  except  where  the  defendant  w\as  acquitted  by  a  jury.^ 
But  the  ISTew  York  statute,  authorizing  Avrits  of  error  to 
review^  judgments  which  shall  have  been  rendered  in  favor 
of  those  indicted  for  criminal  offences,  does  not  include 
judgments  rendered  before  its  passage.'' 

§  25.  As  in  case  of  new  trial  (see  chap.  12),  error  does 
not  in  general  lie,  for  a  decision  upon  a  motion  addressed 
merely  to  the  sound  discretion  of  the  court ;  as  for  a  de- 
cision of  the  court  below,  upon  a  motion  to  vacate  a 
judgment,  founded  upon  affidavits.^  So  a  refusal  to  set 
aside  an  aAvard,  under  a  compulsory  arbitration  law,  for 
misbehavior,  or  wdien  the  award  has  been  obtained  by 
undue  means,  is  not  the  subject  of  a  writ  of  error."  Nor 
the  decision  of  a  court  of  original  jurisdiction,  upon  an 
application  to  open  a  judgment  on  confession.^  !N"or  an 
order  opening  a  judgment  to  let  in  a  defence.**     So  where 

'  Yalentiue  v.  Norton,  30  Maine,  Byrcl   v.    Johnson,   38   Geo.  113  ; 

194.  City.  &c.  V.  Jackson,  1  Doug.  106  ; 

2  Jacquins  v.  Commonwealth,  9  Chairec  v.  Soldan,   5  Mich.    243  ; 
■   Cush.  279.  Bulson  v.  The  People,  31  111.  409. 

3  The  People  v.  Clark,  3  SeUl.  <i  Bemus  v.  Clark,  29  Penn.  251. 
385.  '  Bunce  v.  Wightman,  29  Penn. 

«  The  People  v.  Carnal,  2  Seld.     335. 
4G3.  ^  Hill  V.  Irwin,  32  Penn.  314. 

5  Hill  V.  Canneld,  50  Penn.  404  ; 


CH.  XIX.]  WRIT    OF   ERROR.  629 

the  court  declined  to  pass  upon  certain  pleas  in  a  scire 
facias^  but  saved  the  right  to  insist  on  them  at  the  trial; 
held,  the  ruling  was  not  oiie  to  which  error  would  lie.' 
And  the  court  above  will  rarely,  if  ever,  interfere  with 
the  exercise  of  its  discretion  by  the  inferior  court,  in 
setting  aside  a  default  f  or,  except  in  cases  of  manifestly 
gross  and  flagrant  abuse  of  power.^  So  the  want  of  suffi- 
cient particularity  in  the  specification  of  a  set-off  is  not 
ground  of  error;*  or  the  ruling  of  a  court  on  a  question  of 
amendment  ;^  or  the  exercise  of  discretion  in  discharging 
or  sending  out  the  second  time  a  jury  who  cannot  agree.® 

§  26.  It  has  been  sometimes  held,  that  a  writ  of  error 
does  not  lie,  to  correct  error  in  the  amount  of  a  verdict,'^ 
as  in  case  of  interest  f  or  where  the  damages  recovered  are 
more  than  the  amount  laid  in  the  declaration  f  or  in 
adding  the  costs  in  the  damages ;'"  in  which  case  there 
may  be  a  remittitur  of  damages  even  after  error  brought.^' 
So  in  an  action  upon  a  note,  if  the  verdict  be  for  an 
amount  greater  than  appears  from  the  declaration  to  be 
due,  a  writ  of  error  is  not  the  proper  remedy,  but  the 
defendant  should  ask  for  a  new  trial.'^ 

§  27.  But  the  better  opinion  would  seem  to  be,  that  error 
lies,  where  the  damages  awarded  exceed  those  claimed  in 
the  declaration;'^  or  where  the  amount  of  the  judgment 
exceeds  the  ad  damnurii}^ 


'  Bcalle  V.  Day,  38  Geo.  435.  ^  Thompson  v.  French,  10  Yerg. 

2  Chicago  V.  Adams,  34  111.  493.  453. 

3  Rich  -y.  Hathaway,  18  111.  548.  i"  McAlexander    v.    Wright,     3 
♦  Hodges    V.    Rutland,    &c.,    3  Monr.  189. 

Wms.  330.  "  Pickwood  v.  Wright,  1  H.  Bl. 

5  Crawford  v.  New  Jersey,  &c.,  G43. 

4  Dutch.  479.  '2  McKenzie    «.  McColl,  3   Ala. 

6  Coit  V.  Waples,  1  Min.  134.  516. 

^  Abney  v.  Carter,  3  Ala.  715  ;  '^  Rives  v.  Kumler,  37  111.  391. 

Moore  «.  Bradford,  ib.  550.  '^  Grosvenor     v.    Dauforth,     16 

s  Whitwell  V.  Atkinson,  6  Mass.  Mass.  74. 
273. 


630  THE   LAW    OF  NEW    TRIALS.  [oiL  XIX. 

§  28.  The  taxation  of  costs  is  revieAvable  upon  error. ^ 
Thus,  in  Illinois,  error,  not  appeal,  lies  from  the  Circuit  to 
the  Supreme  Court  on  a  question  as  to  the  taxation  of 
costs  on  a  fee-bill  replevied.^ 

§29.  But,  where  the  judgment  for  costs  is  against 
neither  party,  no  one  has  a  right  to  complain.^ 

§  30.  The  allowance  or  disallowance  of  costs  in  chancer}/ 
is  entirely  discretionary,  and  not  the  sul)ject  of  error, 
especially  where  such  allowance  is  in  favor  of  the  prevail- 
ing party." 

§  31.  But  although  a  writ  of  error  will  not  lie  to  re- 
verse a  decree  for  costs  only ;  where  the  court  obtains 
jurisdiction  in  error  on  other  grounds,  it  may  reform  the 
matter  of  costs.' 

§  32.  Error  lies,  in  case  of  default,  for  a  defect  in  the 
declaration.^  So  where  one  count  is  bad,  and  there  is  a 
general  assessment  of  damages ;  unless  the  certificate  of 
the  judge  shows  that  they  were  assessed  only  upon  the 
good  counts.'^  So  where  the  illegality  of  the  promise  sued 
on  appears  on  the  declaration.^  So  in  case  of  misjoinder.^ 
Thus  where  legatees  sue  jointly  for  money  bequeathed  to 
them  separately;  a  judgment  by  default  in  their  favor 
may  be  reversed  by  a  writ  of  error:'"  and,  in  such  case, 
there  can  be  no  amendment  by  striking  out  all  the  names 


'  Andrews  v.  Crcssy,  2  Min.  G7.  ^  Randolph   v.   Rosser,    7   Port. 

Pee  Weston,  11  Mass.  417  ;   Field  249. 

V.  First,  &c,.,   5    ib.    389;    South-  g  Perry ».  Goodwin,  G  Mass.  498. 

worth  V.  Packard,  7ih.  9.j ;  Brewer  ^  Ilnninenwav  v-  ITicks,  4  Pick. 

V.  Brewer,  6  Geo.  r,87.  497  ;  Dryden  t'.'Dryden,  9  ib.  54G. 

2  Smith  V.  Coats,  19  111.  405.  «  Stotesbiiry  v.  Smith,    2   Burr. 

3  Ross  V.  Ilayne,  3  Iowa,  211.  924. 

♦  Tomlinson  v.  Wood,  2   Conn.  9  Fairfield  v.  Burt,  11  Pick.  244. 

89G  ;  Cowlesy.Whitman,  10  ib.  131.  '»  Whiting  v.  Cook,  8  Allen,  G3. 


en.  XIX.]  AVRIT   OF   ERROR.  631 

but  one;  especially  where  there  is  nothing  upon  the  record 
to  show  the  sum  to  which  he  would  be  entitled.^ 

§  33.  But  a  writ  of  error  docs  not  lie,  after  a  verdict 
for  the  plaintiff  in  a  writ  of  entry  for  a  described  portion 
of  land  sued  for,  on  the  ground  that  there  are  no  sufficient 
monuments  or  other  means  to  ascertain  the  land  recovered  ;^ 
nor  wliere  an  indictment  contains  several  counts,  upon 
one  of  which  a  verdict  of  guilty  is  rendered,  and  sentence 
passed,  though  upon  one  of  the  other  counts  there  is  no 
finding  ;3  nor  where,  upon  an  indictment,  a  general  ver- 
dict of  guilty  is  returned,  and  one  count  is  good,  because 
there  is  another  count  defective.^  So  it  is  held  that  a 
misjoinder  of  the  defendants  is  not  available  on  error, 
when  the  complaint  shows  a  substantial  cause  of  action 
against  both,  and  the  question  was  not  raised  in  the  pri- 
mary court.^  So,  in  an  action  on  a  contract  against  three 
defendants,  who  all  pleaded  the  general  issue,  judgment 
on  a  verdict  having  been  rendered  against  two  only,  with- 
out objection  on  their  part;  they  cannot  reverse  the  judg- 
ment on  error,  although  the  statute  does  not  authorize  a 
judgment  for  the  plaintiff  in  such  case.'' 

§  34.  It  is  held  that  advantage  cannot  be  taken,  on 
error,  of  a  variance  between  the  writ  and  declaration, 
when  the  parties  were  regularly  defaulted  ;^  nor  of  a  vari- 
ance, between  the  amount  of  damages  laid  in  the  prcecijye, 
and  that  laid  in  the  declaration.^ 

§  35.  It  has  generally  been  held,  that  error  does  not  lie, 
where  the  party  had  a  remedy  by  appeal;  more  especially 


'  Whiting  B.  Cook,  8  Allen,  63.  s  Harris  v.  Plant,  31  Ala.  639. 

2  Silloway  v.  Hale,  8  Allen,  61.  ^  Walker  v.  Mobile,  &c.,  31  Ala. 

3  Edgerton  v.  Com.,  5  Allen,  514.  529. 

See  Baron  ».  The  People,  1  Parker,        ^  Thompson  ?).  Turner,    23   111. 

246.  389. 

*  Jennings  v.  Com.,  17  Pick.  80.        »  McKay  v.  Friebele,  8  Flori.  31. 


632  THE    LAW    OF    NEW    TRIALS.  [c.U.  XIX. 

if  the  only  one  provided  by  stutiite.'(a)  Or  "  where  the 
plaintitl:"  in  error  was  in  such  a  condition,  that  without 
laches  he  could  avail  himself  of  his  right  to  appeal  and 
did  not  do  it.  The  reasons  are,  that  the  remedy  by  ap- 
peal is  more  simple,  more  prompt,  less  expensive  and  cir- 
cuitous."^ So  when  an  appeal  is  allowed  by  law,  it  is  held 
that  no  writ  of  error  will  lie,  until  the  appeal  has  been 
tried,  and  the  final  judgment  of  the  court  has  been  en- 
tered thereon.-''  Kor  to  a  decree,  from  which  an  appeal  is 
still  pending.-*  Thus  a  writ  of  error  will  not  be  sustained 
to  reverse  the  judgment  of  a  justice  of  the  peace,  if  the 
plaintiff  in  error  had  an  opportunity  to  appeal.  And 
where  a  party,  by  his  counsel,  ai)peared  before  a  justice, 
and  before  judgment  had  permission  on  his  own  motion 
to  withdraw,  and  did  withdraw  his  appearance;  he  is 
considered  as  having  had  an  opportunity  to  appeal.^ 

§  36.  But  a  writ  of  error  was  held  to  lie,  in  Massa- 
chusetts, to  reverse  a  judgment  of  the  Court  of  Common 
Pleas,  in  an  action  commenced  since  the  Statute  of  1840, 
c.  87  (restricting  appeals  to  questions  of  law),  took  cliect, 
although  an  appeal  might  have  been  taken  from  such 
judgment  by  virtue  of  §  5  of  that  chapter.^  In  this  case, 
the  rule  above  stated  is  said  to  have  been  "  adopted  with 

'  Jobns  V.  Fuller,  13  Geo.  50G  ;  ^  Per    Siiaw,    C.  J.,    Monk    v. 

Haight  V.  Gay,  8  Cal.  297  ;  Carter  Guild,  3  IMet.  373. 

V.  Buchanan,  2  Kelly,  337  ;  MrIcIIc-  »  ilorner    v.    Roberts's    Lateral 

ton  ».  Gould,  5  Cal.   100;    Savage  Railroad,  37  Pcnn.  333. 

r.  Gulliver,  4   Mass.    171  ;  Cham-  *  Jones  ;;.  Crawford,  18  Geo.  281. 

piou  V.  Brooks,  9  ib.  228.  ^  Howard  v.  Hill,  31  Maine,  420. 

6  Peck  D.  Ilapgood,  10  Met.  172. 

(a)  The  distinction  between  writs  of  error  and  appeals  cannot  be 
overthrown  by  an  agreement  of  counsel,  in  the  court  below,  that  all  the 
evidence  in  the  cause  shall  be  introduced  and  considered  as  a  statement 
of  facts.  Minor  v.  Tillotson,  2  llow.  392.  A  party  cannot  obtain  re- 
dress, by  motion  in  error,  for  a  mistake  of  the  jury  in  relation  to  a 
question  which  is  properly  before  them.  Sheldon  v.  Hartford,  &c.,  22 
Conn.  235. 


CH.  XIX.]  "WRIT   OF   ERROR.  633 

many  qualifications  and  exceptions.  An  appeal  o^iened 
the  whole  case,  upon  matter  of  fact  as  well  as  law.  The 
pleadings  might  be  amended,  new  evidence  offered,  and 
the  case  treated  as  an  original  action.  It  was  held  reason- 
able that,  if  a  party  could  appeal,  and  declined  to  do  so, 
he  should  be  considered  as  acquiescing  in  the  judgment."^ 

§  37.  So  an  infant  defendant  may,  in  all  cases,  have  a 
writ  of  error  to  reverse  a  judgment  against  him.  "The 
very  minority  of  the  party,  which  is  assigned  for  error, 
disabled  him  from  appealing."^ 

§  38.  So  a  writ  of  error  lies,  for  want  of  legal  notice 
of  the  suit  and  a  defoult,  though  the  party  might  have 
appealed.^ 

§  39.  So,  notwithstanding  an  agreement  not  to  appeal.* 
Or  declining  to  prosecute  an  appeal  after  claiming  it.^ 

§  40.  So  where  the  court  to  which  an  action  was 
brought  by  appeal  from  a  justice  dismissed  it  without 
trial.^ 

§  41.  And  the  rule  in  reference  to  appeal  does  not  pre- 
clude a  writ  of  error,  though  the  party  has  a  right  to  file 
exce-ptions? 

§  42.  The  distinction  is  made,  that,  after  an  appeal  has 
been  dismissed  for  negligence  of  the  appellant  in  filing  his 
record,  he  cannot  afterwards  sue  out  a  writ  of  error ;  but 


'  Per  Shaw,  C.  J.,  Peck  «.  Hap-  «  Poasj  v.  Rowe,  16  Tex.  590. 

good,  10  Met.  175.  ^  Keen  v.  Turner,  13  Mass.  2G5. 

2  Valicr  v.  Hart,  11  Mass.  300.  ^  Hemmenway  v.  llicks,  4  Pick. 

»  Skipwith  V.  Hill,  2  Mass.  35.  497. 
♦  Wynn  v.  Bellas,  34  Peun.  100. 


G3-1  TUE    LAW    OP   NEW    TRIALS.  [CII.  XIX. 

the  rule  is  difterent,  where  the  appeal  is  dismissed  without 
this  fault.'(a) 

§  43.  To  authorize  a  writ  of  error,  the  judgment  must 
h&  final}  It  is  not  employed  to  bring  up  interlocutory  or 
discretionary  orders,  made  pending  the  litigation.^  There 
must  he  such  a  decision  as  settles  the  rights  of  the  parties 
respecting  the  subject-matter  of  the  suit,  until  reversed  or 
set  aside.^  And  an  order,  in  the  progress  of  a  suit,  and 
before  judgment,  to  be  final,  and  lay  the  foundation  for  a 
petition  in  error,  must  be  such  as  determines  the  action, 
and  prevents  a  judgment.^ 

§  44.  Upon  this  ground,  in  part,  it  is  held,  that  error 
does  not  lie  upon  a  judgment  granting  a  new  trial ,^  such 
order  being  only  in  the  nature  of  an  interlocutory  judg- 
ment.^ jSTor,  where  there  are  three  issues,  upon  a  decision 
of  one  only.^  So  an  order  that  all  proceedings  on  a  judg- 
ment shall  be  stayed,  and  that  no  writ  of  hah.fac.  shall 
issue  thereon,  until  the  final  determination  of  a  pending 
proceeding  to  assess  damages  for  taking  the  land  recovered, 
"subject  to  such  further  order  of  the  court  as  the  justice 

'  Smith  V.  Union,   &c.,  13  S.  &  »  Holbrook  v.  Cook,  5  Mich.  225; 

M.  240.  AVallace  v.  Middlebrook,  28  Conn. 

2  INIartin  v.  Crow,  28  Tex.  613  ;  4G4. 

Tilford   V.  Ilamsev,  43  Mis.  4fi0 ;  *  Hayes  v.  Caldwell.  5  Gilm.  33. 

Allen    V.    Tyler,  "3    Vroom.  498;  ^  Hobl)es   v.   Beckwith,   6  Ohio 

Tradesmen's   v.   Fairchild,    3    ib.  (N.  S.).  252. 

542  ;    Patten  v.  People,  18   Mich.  '^  Enimorson  v.  Harriet,  11   Mis. 

314  ;  Fairtliorne  v.  Wiggington,  11  413;  Emmcrscmfl.  Scott,  ib. ;  Evans 

B.  Mon.  3G8;  Kankin  w!  Ballance,  v.  Adams,  12  Geo.  44;  Keating  v. 

13  111.  766;  Hughes  v.  Maddox,  6  Bradford,  25  Mis.  86. 

Tex.  90  ;  Bisliop  v.  Hampton,  19  ^  Cathcart  v.  Commonwealth,  37 

Ala.   792  ;  Black  v.  Black,    20  ib.  Penn.  108. 

401  ;  Knapp  v.  Marshall,  26  111.  63;  s  Bank,    &c.    v.    Armstrong,    5 

Bradley  v.  Bearss,  4  Ind.  186  ;  Lit-  Eng.  498. 
tie  V.  Morris,  10  Tex.  263. 


(a)  In  Texas,  where,  on  appeal  by  the  defendant,  the  judgment  is 
affirmed,  his  sureties  in  a  sequestration  replevy  bond  may  nevertheless 
prosecute  their  writ  of  error  to  the  judgment,  so  far  as  it  affected  them. 
Sartain  v.  Hamilton,  14  Tex.  348. 


CH.  XIX.]  WRIT   OF   ERROR.  635 

of  the  case  may  require;"  is  not  a  final  judgment,  nor 
removable  by  writ  of  error.^  So  a  decree  of  the  Court  of 
Probate  is  not  final,  unless  it  makes  distribution  of  all  the 
assets  found  to  be  in  the  hands  of  the  executor,  &c., 
among  all  the  parties  who  appear  by  the  record  to  be  in- 
terested in  the  estate,  and  unless  all  the  parties  in  interest 
are  before  the  court,  either  in  person  or  by  notice.^  So  a 
refusal  to  quash  an  indictment  cannot  be  reviewed  on 
error.^  So  where  a  temporary  injunction  is  dissolved,  on 
motion,  on  the  coming  in  of  the  answer,  and  judgment 
entered  against  the  plaintiff  and  his  sureties,  and  tlie  de- 
fendant is  required  to  give  the  refunding  bond  directed 
by  statute,  conditioned  to  refund  in  the  event  of  the  in- 
junction being  made  perpetual  on  final  hearing;  it  is  not 
a  final  judgment  upon  which  a  writ  of  error  will  lie/  So 
a  forfeited  replevin  bond,  upon  which  an  execution  has 
issued,  is  not  a  final  judgment,  upon  which  a  writ  of  error 
lies,  but  the  party  has  a  further  remedy  by  motion  in  the 
court  below.^  So  where  the  (Ohio)  Court  of  Common 
Pleas  order  a  larger  assessment  than  that  fixed  by  the 
Probate  Court  for  land  taken  for  a  railway,  and  render  a 
judgment  therefor;  this  is  not  a  final  judgment,  author- 
izing a  petition  in  error.^  So  it  is  held  that  a  judgment 
is  not  final,  which  does  not  dispose  of  the  question  of 
costs.'^  Nor  does  error  lie  upon  a  mere  interlocutory,  as 
distinguished  from  a  final,  order  of  imrtitlon.^ 

§  45.  But  error  lies  to  a  decision  on  a  motion,  if  it  in 
any  way  determines  the  case,  and  is  a  part  of  the  record.^ 
As,  to  an  order  of  court  striking  a  case  from  the  docket.^" 


'  O'Hara  «.  Pennsylvania,  &c.,  2  ^  Stenbenville,  &c.  v.  Patrick,  7 

Grant,  241.  Ohio  (N.  S.).  170. 

2  HoUis  V.  Caugham,  22  Ala.  478.  "•  Delap  v.  Hunter,  1  Sneed,  101. 

3  The  State  v.  Jones,  5  Ala.  066.  »  Stephens  v.  Hume,  25  Mis.  849. 
*  Albright  v.  Mallory,  19   Tex.  «  Cavanaugh    v.   Titus,    5    Wis. 

106.          '  143. 

6  Testard  v.  Neilson,  20  Tex.  139.  '»  Woodruff  v.  Bacon,  34   Conn. 

181. 


G3G  THE    LAW    OF    NEW    TRIALS.  [CH.  XIX. 

Or  to  ail  order  rejecting  a  claim  against  an  insolvent  es- 
tate.^ So  to  a  judgment  that  a  writ  be  quashed  for  want 
of  a  seal,  and  the  defendant  recover  his  costs.^  Or  where 
a  party  is  before  the  court,  and  the  suit  is  improperly 
dismissed.' 

§  46.  If  there  is  error  in  the  dismissal  of  a  suit  or  a 
refusal  to  reinstate  it,  at  a  former  term,  the  remedy  lies 
in  appeal  or  writ  of  error,  and  not  in  a  second  a])i)lieation 
in  the  same  court  at  a  subsequent  term.  Though  if  the 
dismissal  was  occasioned  by  the  plaintiff's  laches,  the  ap- 
plication should  be  refused.^  So  error  lies  to  the  improper 
dismissal  of  an  appeal.^  But  not  to  a  judgment  refusing 
to  allow  a  plaintiff  to  dismiss,  as  it  is  not  final.  Nor  if 
a  plaintiff'  voluntarily  dismiss.^ 

§  47.  It  is  held  (subject,  of  course,  to  the  rules  as  to 
discretion  and  waiver\  that  errors  in  an  interlocutory  judg- 
ment can  be  revised  on  a  writ  of  error  brought  on  the 
final  judgment,  any  error  in  such  interlocutory  judgment 
entering  into  and  making  erroneous  the  final  judgment.^ 

§  48.  The  rendition  of  a  judgment  is  the  actual  decision 
of  the  case,  and  not  the  perfecting  of  that  decision  of 
record ;  and  the  time  of  appeal  runs  from  the  filing  of  the 
decision  by  the  judge.  A  judgment,  conditional  upon  the 
defendant's  failure  to  answer  within  a  certain  time,  is 
not  consummate  until  the  expiration  of  that  time,  and 
a  writ  of  error  must  be  sued  out  (in  Min.)  within  one 
year  afterwards.^ 

'  Bartol  V.  Calvert,  21  Ala.  42.        (N.  S.)  622  ;  Williams  v.  Stewart, 

2  Bank,   &c.    v.  Bates,    5   Eni?.     3  Wis.  773. 

G31.  '  6  Newman  v.  Dick,  23  111.  338. 

3  Bradford  t).  Bayles,  8  Ala.  8G5.        ?  Cathcart  v.    Com.,   37    Penn. 
<  Chambers   v.  Shaw,    23    Tex.     108. 

165.  8  Haines  v.  Paxton,  5  Min.  443. 

5  Eaton,  &c.  v.  Varnum,  10  Ohio 


CH.  XIX.]  WRIT    OF   ERROR.  637 

§  49.  The  final  decree  intended  ])y  a  statute,  limiting  a 
writ  of  error  to  three  years  after  its  rendition,  is  the  last 
decree  rendered  in  the  cause ;  and  a  writ  of  error  will  not 
l;e  barred,  although  more  than  three  years  have  elapsed 
since  the  decree  was  rendered,  if  there  has  been  a  subse- 
quent decree  within  the  three  years.^ 

§  4:9a.  Where  a  decree  ascertains  and  settles  the  rights 
of  the  parties,  it  is  so  far  final  as  to  sustain  a  writ  of 
error,  although  the  cause  may  be  afterwards  referred  to  a 
master  to  ascertain  facts  for  an  account ;  and  it  will  not 
vary  the  case  that  proceedings  are  afterwards  had,  and 
new  parties  made,  for  a  purpose  not  aftecting  the  merits, 
but  relating:  to  the  account  to  be  taken.^ 

§  50.  Error  does  not  lie  upon  a  correct  decree,  though 
rendered  for  a  wrong  reason.^  And  the  substantial  ques- 
tion on  a  writ  of  error  is,  whether  the  judgment  is  just 
and  correct  on  the  facts  shown  by  bill  of  exceptions.  The 
rulings  of  the  court  may  be  erroneous,  and  yet  the  judg- 
ment be  clearly  correct.* 

§  51.  Nor  does  error  lie  for  informality  of  the  issue, 
unless  it  prevent  the  party  from  putting  forth  the  strength 
of  his  case,  and  prejudice  him.-^  ISTor  if  the  plaintiff  in 
error  was  not  injured  by  the  error  assigned."  IN'or  where 
an  alleged  error  is  in  favor  of  the  plaintifl"  in  error.^  As 
where  error  is  brought  by  a  party  in  whose  favor  a  de- 
murrer has  been  decided.^  Nor  if  the  correction  would 
avail  nothing  to  the  plaintiff'  in  error.^ 

•  Bank,  &c.  v.  Hall,  f.  Ala.  141.  ^  Jackson  «.  Bank,  &c.,  lOPenn. 
2  Bank  of  Mobile  v.  Hall,  6  Ala.     61. 

141.  8  Hurbert  w.  Duniont,  3  Ind.  346. 

»  Stiles  V.  Lis^btfoot,  26  Ala.  443.         ^  Hamrick  v.  Rouse,  17  Geo.  56  ; 

*  Gwin«.  Williams,  27  Miss.  824.     Dupue  «.  Perry,  18  Ala.  34  ;  Sbir- 

5  Gates  V.  Jobnston,  3  Penn.  53.  ley  v.  Lunenlmrgb,  11  Mass.  379; 

6  llaminitt  z).  Coffln,3Iowa,  205;  Wbiting  v.  Cocbran,  9  ib.  533; 
Ball  V.  Maloney.  37  Conn.  560;  Lyman  ?;.  Arms,  5  Pick.  213;  Orms- 
Banning  -v.  Banning,  12  Obio  (N.  by  v.  Ibnisen,  34  Penn.  463. 

S.),  437;  Berry  c.LoVe,  lOMicb.  9. 


638  THE    LAW    OF   NEW    TRIALS.  [CIL  XIX. 

§  52.  And  the  maxim  is  applied — ^'- volenti  not  fit  injuria  "^ 
Hence  a  writ  of  error  will  not  lie  from  a  voluntary  nonsuit.^ 
Nor  after  a  retraxit^  though  the  objection  must  be  made 
before  joinder  in  error.^  Nor  where  the  party  voluntarily 
dismisses  his  suit,  subsequently  to  the  decision  complained 
of.*  When  it  becomes  necessary  for  a  plaintiff  to  suffer  a 
nonsuit,  on  account  of  any  decision  of  the  court  on  the 
trial,  he  must  reserve  the  point  by  bill  of  exceptions,  if  he 
wishes  to  revise  the  action  of  the  court,  even  when  the 
ruling  is  otherwise  disclosed  by  the  record.^ 

§  53.  And,  in  general,  the  writ  of  error  lies  only  for 
errors  of  substance,  not  of  mere /or?n;^ — not  for  such  errors 
as  furnish  ground  of  abatement,^  or  as  are  in  their  nature 
amendable  at  common  law,  or  cured  by  any  of  the  statutes 
of  jeofails.^  Thus,  where  the  complaint  shows  a  substantial 
ground  of  action,  and  no  objection  is  interposed  to  it  in 
the  primary  court,  a  misjoinder  of  causes  of  action  is  not 
available  on  error.^  Nor  the  nonjoinder  of  co-plaintiff', 
after  forcing  the  plaintiff"  to  amend  by  omitting  him.'" 
Nor  a  nonjoinder  of  joint  obligors  as  defendants,  not 
pleaded  in  abatement,  though  the  judgment  was  by  de- 
fault, and  it  was  apparent  from  the  petition  that  there 
were  such,  unless  proved  that  they  are  still  living." 

§  54.  So  no  objection  can  be  taken  to  a  declaration, 
where  judgment  was  rendered  by  default,  except  such  as 

'  Cora.   V.  Shanks,  10  B.  Mon.  ^  Palmer  v.  Bice,  28  Ala.  480. 

804.  6  Benuct  v.   Bullock,  85   Penn. 

2  Union,  &c.  ■;;.  Carr,  2  Humph.  8G4  ;  Buckfield  v.  Gorham,  6  Mass. 

345  ;    Ewing   v.  Glidwell,  3  How.  445. 

Miss.  332;  trice  v.  Smitli,  G  Yerg.  ?  Piper  v.   Goodwin,  10  Shepl. 

319 ;     Howell   v.   Pitman,   5   Mis.  251. 

246;  Atkinson  v.  Lane,  7  ib.  403;  s  ^llen  v.  The  Mayor,   &c.,    9 

Kclscy    V.   Koss,    G   Blackf.    53G  ;  Geo.  286;  Shoenberger  v.  Zook,  34 

Vestal  V.  Burditt,  ib.  555  ;  Kent  v.  Penn.  24. 

Hunter,  9  Geo.  207;   Greenlee  «.  ^  Walker  w.  Mobile,  &c.,  31  Ala. 

McCoy,  30  Miss.  588.  529. 

»  Harris  v.  Preston,  5  Eng.  201.  i"  Powell  v.  Ross,  4  Cal.  197. 

^  Dannolly  v.  Speer,  7  Geo.  227;  "  Anderson  v.  Chandler,  18  Tex. 

Mott  V.  Hill,  ib.  79.  436. 


en.  XIX.]  WRIT    OP   ERROR.  639 

would  be  good  on  general  demurrer. ^  So,  if,  pending  the  writ 
of  error  with  supersedeas,  the  defendant  in  error  prove  the 
existence  and  loss  of  the  process  and  sheriiF's  return,  the 
want  of  Vv'hich  was  the  only  error,  the  judgment  will  be 
affirmed.2  So,  that  an  action,  otherwise  maintainable,  was 
begun  prematurely,  is  an  objection  which  cannot  be  taken 
advantage  of  on  error,  after  the  time  when  it  could  be  com- 
menced.^ Nor,  in  an  action  brought  by  a  corporation,  the 
omission  to  aver  its  corporate  existence  in  the  complaint, 
when  a  trial  was  had  on  the  plea  of  the  general  issue, 
without  this  objection.*  And  it  is  not  a  fatal  error,  to 
sustain  a  demurrer  to  a  special  plea,  setting  up  a  defence 
which  is  available  under  the  general  issue.^(a) 

§  55.  "Where,  from  the  whole  record,  it  appears  conclu- 
sively that  the  proper  judgment  was  entered,  the  pro- 
ceeding will  not  be  reversed  on  error,  even  if  the  court 
mistook  the  law  on  some  of  the  propositions  discussed.® 
Nor  where  there  has  been  a  trial,  as  upon  an  issue,  though 
no  issue  was  joined,  if  the  merits  have  been  reached.^ 

'  Fournier  ■».  Faggott,  3  Scam.  *  "Walker  v.  Mobile,  &c.,  31  Ala. 

347.  529. 

'  Gentry  v.  Hutchcraft,  7  Monr.  ^  "W^allace  v.  Scales,  36  Miss.  53. 

241.  ^  Harman   v.   Kelley,   14    Ohio, 

'^  Mahoney  v.  O'Leary,  34  Ala.  503  ;  Andre  v.  Johnson,  6  Blackf. 

97.  375. 

7  Ward  V.  Moore,  6  Yerg.  491. 

(a)  Error  to  the  allowance  of  a  merely  formal  amendment  of  the 
pleadings  is  evidently  frivolous,  and  intended  for  delay,  and  the  judg- 
ment in  such  case  was  afiirmed,  with  ten  per  cent,  damages.  Jenkins  v. 
Banning,  23  How.  455.  In  New  York,  Ohio,  and  perhaps  other  States, 
error  is  limited  to  judgments  which  "  affect  substantial  rights."  Many 
cases  have  occurred  involving  the  construction  of  this  phrase.  In  Ohio, 
an  order  of  the  Court  of  Common  Pleas,  discharging  an  attachment 
against  a  resident,  as  to  the  whole  property  attached,  affects  a  substantial 
right,  and  is  made  in  a  special  proceeding,  and,  by  ^  512  of  the  code,  is  a 
final  order  which  may  be  reversed  pending  the  action.  Watson  v.  Sulli- 
van, 5  Ohio  (N.  S.),  42.  So  an  order,  dismissing  an  action  appealed  from 
a  justice  of  the  peace  to  the  Common  Pleas,  for  want  of  a  petition. 
Ilettrick  v.  W' ilson,  12  Ohio  (N.  S.)  136. 


640  THE    LAW    OF   NEW    TRIALS.  [CH.  XIX. 

Nor  where  the  siil)jcct-malter  of  exceptions  becomes  im- 
materiul  in  the  further  progress  of  the  cause.^ 

§  56.  It  is  held  that  a  writ  of  error  may  be  brought, 
unless  the  error  is  one  from  which  it  is  impossible  any 
injury  could  have  accrued.*  And  a  party  may  sometimes 
reverse  a  judgment  in  his  favor.  Tlius  A.  sued  B.,  C,  and 
D.  on  a  joint  bond.  Judgment  was  rendered  against  B. 
by  default,  and  the  suit  was  dismissed  as  to  C.  and  D. 
After  B.'s  death,  the  judgment  remaining  unsatisfied,  A. 
brought  a  writ  of  error  to  have  the  judgment  reversed. 
Held,  A.  was  entitled  to  a  reversal  of  the  judgment  in  his 
favor,  and,  as  the  judgment  stood  in  the  way  of  his  re- 
covery against  C.  and  1).,  it  was  reversed.^ 

§  57.  But  it  is  held,  tliat  aparty  suing  out  an  execution 
and  enforcing  a  judgment  in  his  favor  elects  to  take  it  as 
rendered,  and  cannot  afterwards  prosecute  a  writ  of  error 
tlicreto.^ 

§  58.  The  error  complained  of  must  a^pm/*  upon  the 
record.\a)     And  unless  points  intended  to  be  raised  for 

'  Philadelphia,  &c.  v.  Howard,  &c.,  27  111.  145  ;  Smith  v.  Trimble, 

13  Ilow.  307.  ib.  153;  Benedict  v.  Stale,  12  Wis. 

■^  Pinkston  «.  Greene,  9  Ala.  19;  313;    Peglow    v.    State,    ib.    534; 

Fuller  V.  Robb,  26  111.  246  ;  John-  Frantz  v.   State,  ib.  536  ;  Keed  v. 

eon  V.  Jebb,  3  Burr,  1772;  2  Sauu.  De  Wolf,  Wright,  418;  Guthrie  v. 

101,  d.  n.  Wilson,    40   Penn.    430  ;    Graham 

s'llale    v     Crowell,   2    Florida,  -y.  McCrcary,  ib.  515  ;  Leak  «.  Mc- 

534  Dowell.    6   Geo.   264;    Eldrcd    v. 

»  Lacy  v.  Hall,  37  Penn.  366.  Haslett,    38  Penn.  16  ;  Lutkins  v. 

5  Schoeppe^.Com.,  Leg.  Inlell.,  Zabriskie,   1  N.  .1.337;  Sccrest  v. 

Feb.    18,    1870;     Summerville    v.  Townsend,  1  Tex.  414;  Jones  v. 

Painter,  44  Penn.  110;   Taylor  v.  Black,  ib.  527;  People  v.  Judges, 

Cora.,  ib.  131  ;  State  v.  Thompson,  &c.,  1  Doug.  434;  Millerd  v.  Reeves, 

18  Tex.  526  ;  llakman  v.  Sheufl'er,  1  Mann.  107;  Miller  v.  Chaffee,  ib. 

48  Penn.  176  ;  Hallam  v.  Jacks,  11  257. 
Ohio  (N.  S. ),  692 ;  Roddick  v.  Slate, 


(a)  The  purpose  of  a  writ  of  error  is  to  examine  the  record.  Star- 
bird  V.  Eaton,  42  Maine,  569.  As  to  the  application  of  this  rule  in  case 
oiwant  of  jurisdiction,  see  Riley  v.  Waugh,  8  Cush.  220;  Fesseudcn  v. 


CH.  XIX.]  WRIT    OF    ERROR.  641 

revision  are  set  out  in  the  record  with  reasonable  certainty, 
so  as  to  enable  the  court  to  decide  without  danger  of  mis- 
take; the  exception  or  point  reserved  will  be  disregarded.^ 

§  59.  Thus  error  cannot  be  maintained  upon  a  report  of 
the  judge;  or  reasons  given  for  the  opinion  of  the  court, 
or  such  opinion  itself;  or  papers  and  documents  filed.-(rt) 
So,  in  Pennsylvania,  on  writ  of  error  to  a  judgment,  on 
summary  proceedings  before  two  justices  by  a  landlord,  to 
obtain  possession,  which  are  removed  by  certiorari  into  the 
Common  Pleas;  the  Supreme  Court  cannot  notice  matters 
not  appearing  on  the  record,  although  proved,  by  deposi- 
tion in   the  court   below,  to  have   occurred   before   the 

'  Findlay  v.  Pruitt,  9  Port.  195.  Adams,  8  Mass.  383;  Paul  v.  Hus- 

2  McFadden  v.  Otis,  6  Mass.  323;  sey,  35  Maine,  97;  Com.  ■».  Church, 

Storer  v.  White,  7  ib.  448  ;  Gerrish  1  Penn.  105. 

V.  Morss,  2  Pick.   025  ;  Pierce  v. 

Hill,  6  Mich.  242.  The  record  of  a  judgment  having  been  amended 
during  the  pendency  of  a  writ  of  error  thereon,  the  amended  record 
becomes  the  only  subsisting  record  for  the  consideration  of  the  court. 
Weed  V.  Weed,  25  Conn.  494. 

(a)  In  Pennsylvania,  where  it  appears  from  the  record  that  deeds, 
records,  or  papers  material  to  a  sufficient  understanding  of  the  case, 
were  given  in  evidence  in  the  court  below,  and  these  documents  are  not 
annexed  to  the  record,  the  court  will  affirm  the  judgment.  Barton  v. 
Wells,  5  Whart.  225.  In  Maine,  errors  in  fact  may  be  assigned  which 
are  not  disclosed  by  the  record;  but  nothing  can  be  assigned  which 
contradicts  the  record ;  the  deposition  of  the  justice  who  rendered  the 
judgment  cannot  be  received  to  discredit  it.  Papers  and  documents  filed 
in  the  case,  but  not  incorporated  into  the  record,  constitute  no  part  of 
it.  Paul  V.  Hussey,  35  Maine,  97.  In  New  York,  a  special  assignment 
of  errors,  that  the  issues  were  not  tried,  is  bad,  as  impeaching  the  record; 
and  a  plea  of  in  mdlo  est  erratum  to  such  assignment  operates  as  a 
demurrer,  and  not  as  a  confession  of  the  fact  assigned  as  error.  Lovett  v. 
Pell,  22  Wend.  369.  In  Alabama,  upon  a  writ  of  error  coram  vohis,  error 
cannot  be  assigned  which  contradicts  the  record.  Thus  it  cannot  be 
assigned  that  a  corporation,  against  which  a  judgment  had  been  rendered, 
had  ceased  to  exist  previous  to  the  rendition  of  the  judgment,  that  fact 
having  been  put  in  issue  and  determined  in  the  judgment  sought  to  be 
reversed.     Holford  v.  Alexander,  12  Ala.  280. 

41 


642  THE   LAW    OF   NEW    TRIALS.  [CU.  XIX. 

justices.^  So  the  reasons  of  the  court  below,  or  deposi- 
tions there  read,  on  a  rule  to  show  cause  why  an  execution 
should  not  be  set  aside,  on  the  ground  that  a  conditional 
verdict,  rendered  in  the  case,  had  been  complied  Avith; 
cannot  be  inquired  into  on  error.'-  So  the  record  should 
disclose  the  full  names  of  the  parties  to  the  action.'  So 
the  court  will  not  take  notice  of  a  note  not  made  part  of 
the  record,  although  filed  in  the  case,  any  more  than  a 
deposition  or  other  proof  oftercd  to  sustain  it.*  So  an 
account,  unless  made  so  by  a  bill  of  exceptions,  is  no  part 
of  the  record,  and  cannot  be  noticed  upon  error,  so  as  to 
raise  the  question  of  variance  between  the  parties  and  the 
account  sued  on.^  So  it  being  claimed  as  error,  that  the 
court  below  required  a  remittitur  of  a  certain  sum  only, 
when  it  should  have  included  therewith  several  years' 
interest  thereon,  which  it  appeared,  by  the  motion  for  a 
new  trial,  had  been  allowed  by  the  jury  in  their  verdict, 
in  connection  with  said  sum ;  it  was  held,  that,  as  it  did 
not  appear  from  the  record  on  what  ground  that  sum  was 
required  to  be  remitted,  it  was  impossible  for  the  court  to 
know  that  the  interest  in  question  ought  to  have  been 
added  to  it.''  So  where  the  assignment  of  error  was,  that 
the  court  refused  to  hear  the  prisoner  by  himself  or 
counsel,  on  a  motion  in  arrest  of  judgment;  such  error 
cannot  be  examined  into  by  the  Supreme  Court,  there 
appearing  nothing  on  the  record  to  show,  wdiether  the  fact 
is  as  stated  in  the  specification  in  error.^  So  the  venire 
facias  is  not  properly  part  of  the  record,  and  objections 
touching  it  must  be  made  in  the  court  below.^  So  error 
does  not  lie,  in  case  of  a  mere  agreement  to  change  a 
certain  paper  into  a  special  verdict  or  bill  of  exceptions, 


'  McMillan  v.  Graliam,  4  Peun.  ^  Cornelius  v.  Merritt,  2  Head, 

140.  97. 

2  Moyer  «.  Germantown,  &c.,  3  ^  Weed  v.  Weed,  25  Conn.  594. 
AV.  &  S.  91.  '  Weaver  v.  Commonwealth,  29 

3  Knox  v.  Starks,  4  Min.  20.  Penn.  445. 

'  Starbird  v.   Eaton,  42  Maine,  «  Newcomb    v.   State,  30   Miss. 

569.  383. 


on.  XIX.]  WRIT   OF    ERROR.  643 

wliicli  was  not  done'  So  a  statement  of  facts  made  by  a 
judge,  for  the  purpose  of  taking  the  advice  of  the  court 
thereon,  is  not  a  judicial  finding  of  the  facts,  and  does  not 
become  a  part  of  the  record  of  the  case,  on  a  writ  of  error; 
but  is  a  mere  informal  statement  for  the  single  purpose  of 
taking  such  advice,  and,  when  the  advice  is  rendered,  has 
performed  its  office  and  is  of  no  further  effect.-  So,  that 
the  court  disregarded  a  former  judgment,  cannot  be  noticed 
as  error,  where  the  record  does  not  show  that  the  judg- 
ment was  ever  offered  in  evidence,  and  the  court  did  not, 
as  it  usually  does,  find  the  facts.^  So,  in  Vermont,  de- 
cisions of  the  county  court,  upon  questions  of  law  not 
ai:»pearing  upon  the  record  in  any  other  way  than  by 
means  of  exceptions,  not  signed  by  the  presiding  judge, 
nor  filed  within  thirty  days  from  the  rising  of  the  court, 
cannot  be  revised  by  the  Supreme  Court  upon  a  writ  of 
error.  The  only  mode  of  allowing  exceptions,  and  passing 
causes  to  the  Supreme  Court  upon  them,  is  that  prescribed 
by  the  Comp,  Sts.  c.  28,  §  4-1:.  But  questions  of -law 
apparent  upon  the  record  by  means  of  a  report  of  auditors, 
or  the  pleadings,  or  placed  there  by  the  agreement  of 
parties,  may  be  revised  in  the  Supreme  Court  by  writ  of 
error,  although  no  exceptions  are  filed  in  conformity  with 
the  statute.^  So  where  the  record  of  a  case,  brought  up 
by  writ  of  error  to  the  Supreme  Court  of  the  United 
States,  from  the  Circuit  Court  for  the  eastern  district  of 
Louisiana  (by  the  practice  of  which  State,  matters  of  fact 
as  well  as  of  law  are  decided  by  the  judge,  if  neither  party 
ask  for  a  jury),  does  not  show  that  any  question  of  law 
arose  or  was  decided  by  the  court;  the  judgment  must  be 
affirmed.^  So  on  motion  to  dismiss  a  writ  of  error,  on  the 
ground  that  an  appeal  was  entered,  and  an  appeal  bond 
given  below,  the  record  certified  up  is  the  only  evidence 


'  Suydam     v.    Williamson,    20        ^  j^cw    Orleans    v.   Gaines,    2Z 

How.  437.  How.  141. 

2  Nichols  «. Bridgeport,  27Couu.        »  Small  v.  Haskins,  30  Vt.  172. 
459.  5  Bond  v.  Brown,  12  How.  254. 


G44  ,  THE    LAW    OF    NEW    TRIALS.  [CII.  XIX. 

of  tliosc  facts.  If  tlic  record  is  not  complete,  a  diminution 
may  be  suggested,  and  the  deficiency  supplied  in  the  ordi- 
nary' manner.'  So  a  deposition,  though  copied  in  the 
record,  but  which  has  not  l)een  made  a  part  thereof  by  a 
l)ill  of  exceptions  or  order  of  court,  will  not  be  noticed  by 
a  court  of  error.-  And  if  a  writ  of  error  assign  for  error 
the  admission  of  im})roper  testimony,  the  record  must 
disclose  what  the  testimony  was  which  is  objected  to.^(rt) 

§  GO.  But  whether  a  plaintiff  in  error  had  notice  of 
the  suit,  is  a  question  of  fact,  open  to  parol  evidence.'* 
9o  a  citation  is  no  part  of  the  record,  and  the  fact  of  its 
having  been  issued  and  served  may  be  proved  aliunde.\b) 
So,  although  nothing  can  be  assigned  for  error,  which 
contradicts  the  record ;  yet  where  it  appeared,  from  the 
record  of  a  justice  of  the  peace,  that  he  was  present  on 
the  7th  of  August,  and  adjourned  the  cause  until  the  14th, 
when  he  rendered  judgment  against  the  defendant  by 
default,  and  it  was  alleged,  in  the  assignment  of  errors, 

'  Coffee  V.  Newson,  2  Kelly,  439,        *  Morrison    v.    Underwood,     5 

*  Sl)urloek  v.    Fulks,    1    Swan,     Cush.  52. 

289.  ^  Inuerarity   v.  Byrne,  5   Uow. 

*  Jones  0.  Trustees,  &c.,  1  Cart.     295. 
109. 


(a)  The  record  on  a  writ  of  error  must  state  the  facts  found,  not  the 
evidence  of  the  facts,  leaving  the  court  of  error  to  find  them.  If  this 
is  not  done,  a  venire  facias  de  novo  will  be  ordered.  Graham  v.  Bayne, 
18  How.  60. 

{b)  Where  the  inquisition  found  a  demise  "  for  one  year,  and  from 
year  to  year  at  a  rent  of  $200  for  the  first  year,"  and  the  justice's  record 
recited  the  complaint,  and  due  proof  that  the  landlord  demised  "  until 
the  end  and  term  of  one  year  thence  next  ensuing,  at  the  yearly  rent  of 
iif'iOO,  and  rented  the  same  from  year  to  year,  at  diflerent  rents ;"  it  was 
held,  the  inquisition  should  be  read  thus:  "^200  for  the  first  year,  and 
from  year  to  year."  Nor  is  it  any  objection  that  the  inquest  have  not 
awarded  restitution,  the  place  for  that  being  in  the  justice's  record;  or 
that  tlie  record  set  out  tlie  proceedings  thus :  "  We,  the  said  justices  and 
freeholders,  proceed  to  hear,  &c.,  and  do  find,"  &c.  McMillan  v.  Graham, 
•i  Penn.  140. 


CH.  XIX.]  WRIT    OF    ERROR.  645 

that  the  defendant  attended  on  the  7th  of  August,  from 
nine  o'clock  until  ten  o'clock  in  the  forenoon,  and  the  jus- 
tice did  not  appear:  held,  such  assignment  was  not  incon- 
sistent with  the  record.^  So,  on  the  other  hand,  error 
cannot  be  maintained,  if  a  judgment,  in  itself  defective, 
refer  to  the  declaration.^  So  the  return  to  a  writ  of  error, 
in  a  criminal  case,  brings  up  the  indictment,  the  pleas, 
and  the  trial  and  judgment  on  the  pleas,  as  well  as 
the  bill  of  exceptions.  On  such  a  return,  therefore,  a 
special  plea  of  a  former  trial  on  the  same  indictment,  and 
the  proceedings  on  such  plea,  are  before  the  court  for 
review.^ 

§  61.  On  error  to  the  Circuit  Court  of  the  United 
States  in  Louisiana,  where  trial  by  jury  has  been  waived, 
and  the  judge  has  decided  both  the  law  and  the  facts,  no 
more  evidence  need  be  returned,  although  offered  at  the 
trial,  to  the  Supreme  Court,  than  is  necessary  to  present 
the  legal  questions  to  be  reviewed.  If  the  evidence  bore 
upon  these  questions,  it  should  have  been  incorporated 
into  the  record  or  exceptions.  The  defendant's  neglect  to 
do  this  implies  it  had  no  such  effect.^ 

§  62.  The  remark  is  made,  in  a  late  case:  "The  party, 
to  retain  his  judgment,  must  show  a  good  record."^ 

§  63.  Eut  the  general  rule  is,  that  the  proceedings  in 
the  court  below  are  'presumed  to  be  right.  The  error  must 
appear  affirmatively  of  record.*'     Thus  A.  sued  B.  in  the 

•  Burgess  «.  Tweedy,  16  Conn.  Hemphill  v.  Saladay,  ib.  301 ;  Mac- 

39.  kemcr  v.  Beuner,  ib.  157  ;  Dunham 

«  Clap  V.  Clap,  4  Mass.  520.  v.  Benedict,  ib.  74;  The  People®. 

3  Grant  v.  People,  4  Parker,  527.  Hessing,  28  111.  410  ;  IMaynard  v. 

■»  Arthurs  v.  Hart,  17  How.  G.  Penniman,  10  IMich.  15o  ;  "Powe  v. 

5  Per  Breese,  J. ;  Sweeney  v.  Duke,  10  Geo.  93  ;  Cox  v.  Cox,  8 
The  People,  28  111.  208.  S.    &   M.    292 ;    Eskrido-e   v.   The 

6  Hough  V.  Baldwin,  IG  111.  293;  State,  25  Ala.  30;  Forelander  v. 
Lee  ^•.  Hardgrave,  3  Micli.  77 ;  The  Ilicks,  G  Ind.  448;  Duekett  v. 
State  V.  Donevan,  11  Mis.  635;  Townsend,  3  Tex.  119;  Burnham 
Saum  V.  Jones,  &c.,  1  Iowa,  165 ;  v.  Butler,  31  N.  Y.  (4  TilTa.),  480; 


046  THE    LAW    OF   NEW    TRIALS.  [ClI.  XIX. 

Court  of  Common  Picas  on  two  notes  amounting  to  over 
$100,  but  filed  no  affidavit.  B.  pleaded  payment  and  set- 
ofl".  The  verdict  was  for  a  less  amount  than  $100.  Held, 
the  court  must  presume,  the  record  stating  no  facts  to 
repel  the  presumption,  that  the  plaintiff's  claim  was  re- 
duced by  set-off;  and  the  plaintiff  should  recover  costs.' 
So  wdicre  the  date  of  a  forthcoming  bond  was  subsequent 
to  the  time  stipulated  for  the  delivery  of  the  property,  it 
wnll  be  presumed  that  the  wrong  date  was  sufficiently  ex- 
plained to  tlie  court  below.^  So  where  it  appears  from 
the  bill  of  exceptions,  that  the  land  in  controversy  was 
entered  by  a  party  who  afterwards  received  a  patent  of 
it;  it  will  be  presumed  that  the  entry  was  made  accord- 
ing to  law,  and  this  is  a  sufficient  proof  of  title  to  sus- 
tain ejectment.^  So  where  a  statement  of  facts  is  filed 
after  the  trial,  mine  i^ro  nunc,  it  is  reasonable  to  presume 
that  the  court  w^as  requested  to  draw^  it  up  at  the  time  of 
the  trial.^  So  where,  in  assumpsit  by  two  parties  against 
a  corporation,  issue  is  joined,  and  before  trial  a  new  party 
is  introduced  byleav  of  court,  and  files  a  declaration  in 
covenant,  upon  which  issue  is  also  joined ;  it  will  be  pre- 
sumed that  the  new  party  and  declaration  were  admitted 
by  consent  after  a  trial  upon  the  merits.'  So  a  declara- 
tion in  error  must  negative  a  condition,  performance  of 
which  would  make  the  proceedings  valid.^  So  upon  scire 
facias  to  renew  a  judgment,  there  was  judgment  for  the 
defendant  on  a  plea  of  bankruptcy,  and  after  three  years' 
acquiescence  it  came  to  the  Supreme  Court  without  plea 

Stcadman  ».  TTolm.an,  83  jNIiss.  550;  '  Minich   v.   Minicli,    33    Penn. 

Pierson   v.  Burncy,  15   Tex.  272;  378. 

Ilouderson  z).  Trimble,   8  ib.  174;  ^  Hyman   v.  Seaman,    33    Miss. 

:\Ior<,'an  v.  Green,  17  111.  395;  St.  185. 

Clair  V.  McGohce,  23  Tex.  5  ;  Sea-  »  Carter  y.  Blanton,  33  Miss.  291. 

well  V.  Lnwrey,  IG  ib.  47;  Little,  *  McGavoch    v.    Woodlief,     20 

&c.  V.  Collett,  6  Ohio  (N.  S.),  182;  How.  221. 

Brazier  v.  Burt,  18  Ala.  201 ;  Dun-  ^  Huntingdon,  &c.  v.  McGovern, 

can  V.  ]\IcNeill,  31  IMiss.  704  ;  Wahe  2!)  Penn.  78. 

V.   Wells,  3   Cal.    148 ;    Brady   v.  ^  Dunlap  v.  Atkinson,  33  Maine, 

Malonc,  4  Iowa,  14G  ;  Cameron  v.  265. 

Ward,  22  Geo.  1G8. 


en.  XIX.]  WRIT  or  error.  647 

or  certificate  of  bankruptcy,  but  the  judgment  entry 
showed  that  such  a  plea  was  filed.  Held,  the  filing  of  the 
plea  and  certificate  should  be  presumed,  and  the  proceed- 
ing was  correct.^ 

§  63(2.  And  in  criminal  as  well  as  civil  cases  the  pre- 
sumption is,  that  the  proceedings  were  regular,  and  it  is 
incumbent  on  the  party  alleging  error  to  show  by  the 
record  that  errors  were  committed.^  Thus,  where  the  record 
recites,  that  the  jury  "were  all  sworn  or  afiirmed  respec- 
tively, to  try,"  &c.,  the  presumption  is,  that  they  were 
properly  sworn  or  aflS.rmed ;  especially  where  no  excep- 
tions to  the  mode  of  qualification  were  taken  at  the  time, 
and  nothing  on  the  record  indicated  any  irregularity.  So 
it  is  not  error,  that  the  record  does  not  show  afi&rmatively 
that  the  prisoner  had  counsel  at  the  trial.  The  law  will 
presume  it,  unless  the  record  exhibit  the  fact  that  this 
constitutional  right  was  denied.^ 

§  64.  It  is  sometimes  held,  that  the  objection  relied  on 
need  not  have  been  made  in  the  court  below  ;*  that  ob- 
jections which  go  to  the  foundation  of  an  action,  and 
which  are  apparent  from  the  record,  may  be  taken  on 
error,  though  not  taken  below.^  As  where  an  attach- 
ment is  issued  by  a  justice  in  one  county,  returnable  to  a 
court  in  another ;  if  it  has  not  been  waived  by  appearing 
and  pleading  to  the  merits.®  So  a  scire  facias  on  a  judg- 
ment nisi,  rendered  on  forfeiture  of  a  recognizance,  is 
merely  process  to  effectuate  that  judgment.  A  material 
variance,  therefore,  between  the  scire  facias  and  judgment 
nisi,  is  fatal  to  the  former,  and  may  be  reached  by  writ 
of  error  to  final  judgment  on  the  scire  facias,  though  no 

'  Bndyman^j.  Viele,  3Iowa,2fl7.        «  Gautier  v.  Franklin,    1    Tex. 

2  Cathcart  v.  Com.,  37  Penn.  108.     733. 

See  Larillian  v.  Lane,  3  En<r.  373.  ^  McDonough  v.  State,  19  Tex. 

3  Brazier  v.  Burt,  18  Ala.  201.        293. 

6  Brooks  V.  Goodwin,  8  Ala.  396. 


648  TUE   LAAV   OF   NEW    TRIALS.  [CH.  XIX. 

objection  to  the  sufficiency  of  the  proceedings  was  taken 
prior  to  that  judgment.^ 

§  G5.  But,  as  in  applications  for  new  trial,  the  doctrine 
of  waiver  is  often  recognized.(a)  Points  not  raised  and 
passed  upon  in  the  court  below  are  held  not  open  for  dis- 
cussion in  the  court  above.-  Objections  to  acts  of  mere 
irregularity  must  be  urged  at  the  earliest  practicable 
moment.^  So,  as  we  have  seen  (§  58),  in  reviewing  the 
proceedings  of  subordinate  tribunals,  whether  civil  or 
criminal,  the  court  is  confined  to  adjudication  ujjon  the 
errors  of  law  upon  the  record,  and  cannot  look  beyond 
them.^  So  if,  after  refusal  of  the  court  to  reject  a  plea, 
the  plaintift'  reply  to  or  join  issue  on  the  plea,  the  refusal 
cannot  be  assigned  as  error.^  And  the  want  of  a  replica- 
tion cannot  be  assigned  for  error,  when  the  cause  is  tried 
without  apparent  objection.''  So  where  an  objection  to  a 
witness  is  taken  at  nisi  lorius^  and  a  reason  assigned,  no 
other  reason  can  be  noticed  on  a  writ  of  error,  the  facts 
of  the  case  being  known  to  the  parties.^  So  a  writ  of 
error  does  not  lie  after  an  agreement  against  it.^  Nor  upon 

'  Douthit  V.  State,  30  Miss.  133.  ^  Smith  v.  Craig,  3  Penn.  ir)3  ; 

2  Spencer  v.  Kunkle,  2  Grant's  Klines.  Guudrum,  11  ib.  243;  Pot- 
Cases,  406.  ter  v.  Dcnnison,  5  Gilm.  590  ;  Duf- 

3  Bass  v.  Winfrjs  20  Geo.  631.  fee  v.  Bucliauau,  8  Ala.  27. 

*  Cathcart®.  Com.,  37  Penn.  108.         «  Camden  v.  Edie,   1  II.  Bl.  21  ; 

5  State  v.  Bodlv,  7  Blackf.  355.        Gates  v.  West,  2  T.  R.  183  ;  Wright 

6  Clement  v.  llayden,  4  Penn.     v.  Nutt,  1  ib.  388. 


(a)  A  point  cannot  be  made  in  the  U.  S.  Supreme  Court,  on  error,  in 
relation  to  instructions  given  to  the  jury,  which  was  not  made  in  the 
court  below.  Doe  v.  Watson,  8  How.  263.  See,  as  to  waiver,  Durant 
V.  Palmer,  5  Dutch.  544;  Chumasero  v.  Gilbert,  26  111.  39;  Gillilan  v. 
Nixon,  ib.  50;  Voltz  u.  Newbert,  17  Ind.  187;  Scoville  v.  Chapman,  ib. 
470;  Edwards  •?;.  Edwards,  31  111.  474;  Ilollinshead  v.  Van  Glahn,  4 
Miu.  190;  Laher  v.  Cooper,  7  Wall.  565;  Kenna's  v.  Quarrier's,  3  AV. 
Ya.  210.  See  Wash  v.  Com.,  16  Gratt.  530 ;  Fortier  v.  Ball,  43  Mis.  23 ; 
Ewing  V.  Howard,  7  Wall.  499 ;  McMickcn  v.  Com.,  58  Penn.  213. 


CH.  XIX.]  AVIIIT   OF   ERROR.  649 

a  case  stated.^  l^or  in  case  of  a  judgment  upon  an  erro- 
neous judgment.  "  The  second  judgment  is  maintained 
by  the  first,  which  is  valid  until  reversed.  The  course  to 
be  taken  is  first  to  obtain  a  reversal  of  the  original  judg- 
ment by  writ  of  error;  and  the  plaintiff  in  error  may  then 
apply  for  a  review  of  the  action,  upon  which  the  writ  of 
eiTor  is  brought."^  So  errors  in  form  in  the  declaration 
are  cured  by  the  statute  of  jeofails,  after  plea  and  a  ver- 
dict on  the  merits.^  So  where,  after  a  demurrer  in  a  jus- 
tice's court  has  been  overruled,  the  demurring  party  pleads 
to,  or  takes  issue  upon,  the  pleading  to  which  the  demurrer 
related;  such  demurrer  forms  no  part  of  the  case,  upon 
eiTor  brought  by  such  demurring  party.^  And  error  can- 
not be  maintained  by  the  party  who  committed  the  first 
fault  in  pleading.5  g^  i\jq  ^ig^t  of  a  corporation  to  hold 
land  or  maintain  an  action  for  its  recovery  cannot  be 
made  for  the  first  time  in  the  Supreme  Court."  So  when 
an  administrator  de  bonis  non  is  appointed  pending  a  suit, 
which  was  brought  originally  by  the  intestate,  and  after- 
wards revived  in  the  name  of  his  administrator  in  chief; 
if  the  defendant  make  no  objection  in  the  primary  court 
to  the  right  of  the  administrator  in  chief  to  proceed  to 
judgment,  he  cannot  raise  the  objection  on  error.^  So 
where  parties  waive  the  right  of  trial  by  jury,  the 
decision  of  the  court  on  matter  of  law  only  can  be  re- 
versed on  error.^  Thus  where,  after  a  special  plea,  the 
parties  submitted  the  cause  to  a  judge  without  a  jury, 
and  defined  in  the  agreement  what  evidence  might  be 
given,  which  evidence  could  not  have  been  submitted 
under  the  pleadings ;  held,  a  waiver  of  the  special  plead- 
ings, which  precluded  proceedings  in  error.^     So  where 

'  Alfred  v.  Saco,  7  Mass.  380.  ^  Henley  v.  Brancli,  &c.,  16  Ala. 

2  Ilawos  D.  Hathaway,  14  Mass.     553. 

233 ;    Whitehead  v.  Henderson,   4  '  Robinson  v.  Tipton,    31    Ala. 

S.  &  M.  704.  595. 

3  Welch  V.  Van  Bebber,  4  Yeat.  s  Gest  v.  Kenner,  7  Ohio  (N.  S.), 
420 ;  Miles  v.  Oldfield,  ib.  423.  75  ;  1  Chandl.  149. 

<  Peck  ■».  Cowing,  1  Denio,  222.        ^  Flanegan  v.  Earnest,  1  Chand. 
5  Jorie  V.  Handley,  3  Bibb,  225.      149. 


650  THE    LAW    OF   NEW    TRIALS.  [CU.  XIX. 

tlic  parties  to  an  ejectment  suit  agreed  in  writing,  in  ac- 
cordance -with  the  laws  and  practice  of  the  State,  to  Avaive 
a  jury  and  submit  both  matters  of  law  and  fact  to  the 
court,  saving  all  rights  of  exception  and  appeal,  as  though 
the  case  were  tried  by  a  jury,  and,  after  a  decision  by  the 
court  below,  exceptions  were  taken  to  all  the  decisions 
and  rulings  of  the  court,  and  a  writ  of  error  w^as  sued  out 
to  the  Federal  Supreme  Court ;  held,  that  errors  of  fact 
or  law,  alleged  to  have  been  committed  in  such  an  irregular 
proceeding,  could  not  be  inquired  into,  and  the  judgment 
should  be  affirmed. ^(a)  So  wdiere  one  of  the  several  de- 
fendants failed  to  appear  and  plead,  and  the  plaintiff,  in- 
stead of  taking  judgment  against  him  by  default,  sub- 
mitted the  case  to  a  jury,  who  found  for  the  defendants; 
held,  that  the  plaintiff  was  not  entitled  afterwards  upon 
error  to  have  the  judgment  reversed.^  So  if  no  objection 
has  been  made  in  the  court  below  to  the  manner  of  taking 
a  deposition,  it  is  too  late  to  object  on  a  writ  of  error.^ 
So  where  a  defendant  suffers  default,  and  fails  to  take 
advantage  below  of  points  open  to  him,  without  a  satis- 
factory excuse ;  he  will  be  held  to  have  waived  them.\6) 

'  Kclsey  v.  Forsyth,  21  How.  85.        »  Ncwlin  v.  Newlin,  8  S.  &  R.  41 ; 
2  Anderson  v.  Walker,  31  Miss.     Clark  «.  Dibl)lc,  16  Wend.  001. 
642.  ''  riolliushead  v.  Von   Glahn,  4 

Min.  190. 

(a)  As  a  general  rule,  the  Supremo  Court  of  the  United  States  will 
not,  upon  a  writ  of  error,  re-examine  or  revise  questions,  whether  of  fact 
or  law,  where  the  parties  agree  that  the  court  below  shall  decide  both 
the  facts  and  the  law;  but  the  facts  must  be  found  in  the  court  below  by 
a  jury,  by  a  general  or  special  verdict,  or  must  be  agreed  upon  in  a 
case  stated.  But  where,  as  by  the  laws  of  Louisiana,  the  facts  may  be 
by  consent  tried  and  found  by  the  court,  this  court  is  bound,  upon  a  writ 
of  error,  to  regard  them  as  judicially  determined,  and  to  treat  them  as 
if  they  had  been  found  by  a  special  verdict;  and  the  questions  of  law 
which  arise  on  them  are  consequently  open  to  revision.  Campbell  v. 
Boyreau,  21  How.  223. 

(6)  That  he  relied  upon  a  previous  decision  by  the  Supreme  Court  of 
the  State  on  a  certain  point,  which  decision  the  same  court  has  since 
overruled,  is  suflBcient  excuse.    4  Min.  190. 


en.  XIX.]  WRIT   OF   ERROR.  651 

§  GQ.  But  the  distinction  is  made,  that  the  court  may, 
in  the  exercise  of  its  discretion,  reverse  a  judgment  for 
an  error  not  assigned  in  the  writ  of  error,  hut  is  under  no 
obligation  to  consider  such  an  error.'  And  an  error  going 
to  the  foundation  of  the  action,  as  overruling  a  demurrer 
to  the  petition,  is  held  not  waived  by  an  omission  to  assign 
it  as  error.^  So  a  writ  of  error  lies,  notwithstanding  an 
agreement  not  to  appeal.*  And  where  a  cause,  by  consent, 
is  submitted  to  the  court  without  a  jury,  error  will  lie 
for  ruling  on  questions  of  law.^  So,  in  Alabama,  error 
lies,  under  the  Act  of  1846,  in  all  cases  in  which  a  non- 
suit is  taken,  on  account  of  the  adverse  ruling  of  the 
court  upon  the  pleadings.^  So  error  lies  to  a  nonsuit, 
suffered  in  consequence  of  an  express  instruction  to  the 
jury. 6 

§  67.  "Where  error  is  brought  to  reverse  a  judgment 
recovered  on  a  note  against  an  infant,  who  appeared  by 
attorney;  a  promise,  made  by  him  after  he  comes  of  age, 
to  pay  the  note,  is  neither  a  release  nor  a  waiver  of  the 
error,  nor  a  bar  to  a  writ  of  error. 

§  68.  Error  lies  in  case  of  default.\a)     Thus  a  writ  of 

*  Ives  v.  Finch,  28  Conn.  113.  ^  Duncan  v.  Hargrove,  22  Ala. 

2  Sueod  V.  Moodie,  24  Tex.  159.       150. 

3  Putnam  v.  Churchill,  4  Mass.        ^  English   v.  Devarro,  5  Blackf. 
516.     See   Flanegan  v.  Earnest,  1     588. 

Chand.  149  ;  Amidown  v.  Osgood,  '  Goodridge  v.  Ross,  G  Met.  487. 

24  Verm.  278.  ^  Doolittle   v.   Shclton,  1    Iowa, 

*  Franklin,  &c.  v.  Buckingham,  271  ;  Karns  v.  Kunkle,  2  Min.  313; 
12  Ohio,  482,  Griffin  v.  Wilson,  19  Ala.  27. 

(a)  In  Pennsylvania,  under  the  $100  act  of  1810,  a  judgment  by  de 
fault  in  the  Court  of  Common  Pleas,  on  an  appeal  from  the  judgment 
of  a  justice  of  the  peace,  merely  affirms  the  judgment  of  the  justice ; 
and  no  defect  of  the  declaration  can  be  taken  advantage  of  by  writ  of 
error.  Elkinton  v.  Fennimore,  13  Peun.  173.  Where  the  record  shows 
an  appearance  of  the  defendant  by  attorney  in  the  court  below,  that  a 
plea  was  filed,  an  issue  made,  and  an  agreed  case  submitted  to  the  court, 
upon  which  judgment  is  rendered;  it  is  too  late  ft,  r  the  defendant  to  com- 


652  THE    LAW    OF   NEW    TRIALS.  [cil.  XIX. 

eri'or,  in  Xcw  York,  whoso  constitution  is  similar  to  the 
English  Court  of  King's  Bench,  was  held  to  lie  upon  a 
judgment  on  default:  the  exception,  in  case  of  the  Court 
of  Errors  in  that  State,  was  made  by  the  particular  lan- 
guage of  the  constitution.^  So  where  a  justice  misled  a 
defendant,  by  informing  him  that  the  cause  was  discon- 
tinued, and  afterwards  gave  judgment  against  him,  in  his 
absence;  the  judgment  was  reversed.^  So  a  writ,  dated 
October  30, 1789,  to  be  returned  on  the  30th  of  October 
next,  is  j'eturnable  to  October  twelvemonth,  and  a  judg- 
ment rendered  on  the  30th  of  the  same  October  is  erro- 
neous.^ So  a  writ,  dated  June  12,  1833,  required  the 
defendant  "  to  aj)pear  on  the  fourth  Tuesday  of  June 
next."  Held,  the  time  of  the  appearance  was  the  fourth 
Tuesday  of  June,  1834;  and,  consequently,  a  default  in 
June,  1833,  was  erroneous.'' 

§  69.  A  writ  of  error  lies,  where  the  defendant  in  the 
former  suit  was  not  served  with  process.^  Or  in  case  of 
service  by  an  unauthorized  officer,  or  other  defective  ser- 
vice.^    So  where  a  party  not  served  was  wrongly  defaulted, 


'  Kauouse  v.  Martin,  3   Sandf.  ^  Ilart  v.  Huckins,  5  Mass.  260. 

053.  Sec   Foster  v.  Iladduck,  6   N.  H. 

2  Tyler  v.  Olncy,  12  Johns.  378;  217;  Hcatliman   v.  Ilulin,  3  J.  J. 
Bullard  v.  Bracla-tt,  2  Pick.  85.  Mar.  42  ;  ]Moores  v.  Parker,  3  Litt. 

3  Austin  V.  Nichols,  1  Root,  199.  268  ;  Prince   v.  Flyun,   2  ib.  240  ; 
See  Way  v.  Clark,  ib.  439.  Jones    v.    Smith,    3    N.    H.    108 ; 

*  Todd  V.  Ilalc,  10  Conn.  544.  Cooper  v.  Bissell,  16   John.   14G ; 

5  Klemm  v.  Dewes,  28  111.  317;  Hart  v.  Huckins,  6  Mass.  399;  S. 

Arnold  V.  Tourtellot,  13  Pick.  172;  C,  5  ib.   2G0 ;    Eno  v.  Frisbie,   2 

Whiting  V.  Cochran,  9  Mass.  532.  Day,  122. 

plain,  on  a  writ  of  error,  that  he  was  not  served  with  process.  If  the 
attorney  was  unauthorized,  it  is  an  error  of  fact  which  cannot  be  joined 
in  an  assignment  with  errors  in  law,  and  the  appropriate  remedy  is  not 
by  writ  of  error  to  the  Superior  Court.  Nor  can  it  be  corrected  by  a 
WTit  of  error  coram  nobis,  but  the  court  below  can,  and  upon  proper 
evidence  will,  set  aside  the  judgment  on  motion,  and  let  the  defendant 
in  to  defend.  Abernathy  v.  Latimore,  19  Ohio,  286.  Error  does  not  lie 
for  setting  aside  a  default.     Final  v.  Backus,  18  Mich.  218. 


en.  XIX.]  WRIT   OF   ERROR.  653 

thougli  otlicrs,  who  were  served,  appeared.^  So,  in  case  of 
default  of  an  absent  defendant,  without  the  required  no- 
tices and  continuances.2  And  it  is  held  that  in  such  case 
there  shall  be  only  a  judgment  of  reversal,  not  an  order 
of  notice.^ 

§  70.  A  writ  of  error  lies  upon  a  judgment  rendered  by 
confession^  but  made  without  sufficient  authority.* 

§  71.  A  judgment  entered  against  defendants,  upon  one 
of  whom  no  service  was  made,  if  he  did  not  a[)pear  or 
plead,  was  erroneous  as  to  him.'  So  in  an  action  against 
a  partnership,  if  the  names  of  the  partners  are  omitted  in 
the  writ  and  declaration,  and  the  writ  served  on  a  person 
not  named  in  either;  a  judgment  against  the  company, 
upon  such  person's  default,  will  be  erroneous.® 

§  72.  One  of  two  joint  defendants  resided  out  of  the 
State,  and  no  service  was  had  upon  him,  and  no  appear- 
ance made  by  him.  The  other  defendant  appeared  and 
pleaded,  and  judgment  was  rendered  by  the  county  court 
in  favor  of  the  defendants.  The  plaintiff  appealed  to  the 
superior  court,  and  had  judgment  in  his  favor.  On  error 
to  the  Supreme  Court,  it  was  held,  that  the  proceedings  of 
the  county  court  were  void,  and  the  judgment  of  the  su- 
perior court  was  erroneous.^ 

§  73.  But  a  judgment  on  default,  and  without  continuance, 
against  two  partners,  upon  one  of  whom,  being  a  resident 
of  another  State,  no  service  was  made,  is  not  erroneous,  in 
Connecticut.^     And  the  principal  defendant,  in  a  trustee 

1  Ibid.  «  Scott  V.  Dunlap,  2  ]\Iunf.  349. 

2  Smith  V.  Paic;e,  4  Allen,  94.  ^  Stoyel  v.  Westcott,  3  Day,  349. 

3  Packard  v.  Matthews,  9  Gray,  «  Southmayd  v.  Backus,  3  Conn. 
311,  474.     See  Violett  v.  Dale,  1  Bibb, 

»' Hinds  V.  Hopkins,  28  111.  344.      144. 
5  Graham  v.  Graham,  4  Muuf. 
205. 


054  THE   LAAV    OF   NEW    TRIALS.  [CH.  XIX. 

process,  cannot  avail  himself,  on  a  writ  of  error,  of  a  want 
of  service  on  one  summoned  as  his  trustee.^ 

§  74.  In  Pennsylvania,  error  does  not  lie  to  reverse  an 
order  of  court,  setting  aside  a  rule  of  reference  and  award.^ 
And  while  mistakes  appearing  on  the  lace  of  a  report  of 
referees  are  examinable  in  a  court  of  error;  for  the  correc- 
tion of  other  errors  committed  by  arbitrators,  the  court 
below  is  the  proper  tribunal.^ 

§  75.  Error  lies,  in  case  of  a  judgment  varying  from  an 
award.^  And,  in  Massachusetts,  the  remedy  has  often 
been  applied  in  case  of  submission  to  referees  by  virtue  of 
a  statute  providing  that  form  of  trial.  Thus  a  writ  of 
error  lies  to  reverse  a  judgment  rendered  upon  the  report 
of  referees,  who  were  appointed  under  a  statute,  unless 
the  statute  be  strictly  pursued.  As  where  the  statute 
provided  for  three  referees,  and  the  submission  was  made 
to  two,  who  were  to  appoint  a  third  in  case  of  disagree- 
ment.^ So  where  the  statement  of  the  demand  submitted 
did  not  exhibit  on  what  account  or  for  what  cause  the 
demand  was  made,  but  merely  the  amount.^  So  where  it 
did  not  appear  on  the  record,  that  all  the  referees  heard 
the  parties ;  two  only  signing  the  award,  and  making  no 
reference  to  the  third.'^  So  where,  after  entering  into  the 
statutory  submission  before  a  justice  of  the  peace,  the 
parties  by  a  further  agreement,  not  thus  acknowledged, 
extended  the  authority  of  the  referees  to  other  matters ; 
which  were  also  taken  into  consideration  and  passed 
upon.^(a)    So  the  (Mass.)  Statute  of  1840,  c.  87,  §  5,  docs 

'  Whiting  v.  Cochran,  9  ]\Ias3.  '  Nelson  v.  Andrews,  2  Mass. 
532.                                                          164. 

2  Erie,  &c.  v.  Brawley,  8  Watts,  ^  Monosiet  v.  Post,  4  Mass.  582. 
530.  ^  Jones  v.  Hacker,  5  Mass.  !J64. 

3  Sands  v.  Rolshouse,  3  Penn.  ^  Short  v.  Pratt,  G  ]\Iass.  4nG. 
45G.  See  Metcalf  v.  Mattison,  32  »  Tudor  v.  Peck,  4  Mass.  242. 
N.  Y.  (5  Tiffa.)  464. 

{a)  See,  as  to  the  foregoing  cases,  the  note  of  Mr.  Eaud  in  Bacon  v. 
Ward.  10  Mass.  143. 


en.  XIX.J  WRIT    OF  ERROR.  655 

not  take  away  the  right,  given  by  Rev.  Sts.,  c.  114,  §  13, 
to  a  writ  of  error  to  reverse  a  judgment  on  an  award  ;  it 
merely  gives  a  cumulative  remedy  by  appeal.^ 

§  76.  Error  lies,  where  it  is  agreed  that  an  award  shall 
be  final  and  without  appeal,  and  the  award  is  struck  oft? 

§  77.  The  effect  of  a  writ  of  error  of  course  depends  much 
upon  the  varying  practice  which  usage  and  statute  have 
established  in  difterent  States.^ 

§  78.  In  England,  it  is  said  by  an  approved  writer,  in 
general,  as  a  writ  of  error  operates  a  supersedeas  of  the 
execution,  the  plaintiff"  in  error  must  give  security  to 
prosecute  the  writ,  satisfy  the  judgment,  and  pay  damages." 

§  79.  Where,  as  in  some  States,  the  writ  does  not  stay 
execution,  no  security  is  required ;  unless,  upon  motion,  a 
supersedeas  is  expressly  ordered.^ 

§  80.  A  bond  is  not  a  condition  precedent  on  the  writ; 
but,  if  no  bond  is  given,  the  writ  does  not  operate  as  a 
supersedeas.® 

§  81.  Where  an  order  for  a  writ  of  error  is  made,  the 
order  Avill  be  vacated  or  modified,  if  the  penalty  of  the 
bond  be  less  than  the  statute  requires.^ 

§  81«.  Where  the  judgment  sought  to  be  reversed  is  for 
the  penalty  of  a  bond  conditioned  to  pay  money  by  in- 
stalments, a  part  only  of  which  has  become  due,  the  pen- 

'  Day  V.   Laflin,    6   Met.   280  ;  Nixan,  1  T.  R.  280.     See  Ferris  v. 

Henderson  v.  Adams,  5  Cush.  610.  Douglass,  20  Wend.  626. 

2  Wjam  «.  Bellas,  34  Penn.  160.        ^  Bailey  v.  Baxter,  1  Mass,  156. 

3  See  Kinsman  U.Paige,  24  Verm.  ^  Turner  v.  Hamilton,  6  Tex. 
656.  250. 

■•  2  Tidd's  Prac.  1105.   Jaqueso.        7  ^'illougbby    v.    Comstock,    7 

Hill,  162. 


656  THE    LAW    OF    NEW    TRIALS.  [CII.  XIX. 

alty  of  the  error  bond  need  not  Ijc  proportioned  to  the 
nominal  amount  of  the  judgment,  but  may  be  double  the 
amount  for  which  the  plaintiff  has  the  right  to  issue 
execution.* 

§  82.  A  writ  of  error  with  supersedeas  does  not  ^fr  se 
revive  an  injunctiou.2(rt) 

§  83.  It  is  held  that,  notwithstanding  a  writ  of  error, 
an  action  lies  upon  the  judgment.^ 

§  84.  In  Ohio,  the  filing  a  petition  in  error,  and  the 
execution  of  an  undertaking  for  stay  of  execution,  do  not 
discharge  interlocutory  orders  made  for  the  preservation 
of  property,  or  the  protection  of  jiarties,  during  the  liti- 
gation, and  the  jurisdiction  to  make  such  orders,  pending 
the  proceedings  in  error,  remains  in  the  court  below.  The 
petition  does  not  bring  the  whole  cause  before  the  appel- 
late court,  but  only  the  judgment  complained  of,  and 
leaves  in  the  court  below  all  jurisdiction  in  the  cause  not 
inconsistent  with  the  power  to  reverse,  vacate,  or  modify 
the  final  judgment.* 

§  85.  But  suing  out  aji.fa.  and  a  collection  of  costs, 
upon  a  judgment  in  ejectment,  is  inconsistent  with  the 

'  Willoiighby  v.  Comstock,  7  ^  Nill  v.  Comparet,  16  Ind.  107. 
Hill,  1G2.  *  Goode  v.  Wiggins,  13  Ohio  (N. 

2  Blount  V.  Tomlin,  26  111.  530.       8.),  341. 


(a)  The  Supreme  Court  of  the  United  States  will  not  quash  an  exe- 
cution issued  by  the  court  below  to  enforce  its  decree,  pending  the  writ 
of  error,  if  not  a  supersedeas.  Wallen  v.  AVilliams,  7  Cranch,  276.  In 
Alabama,  a  writ  of  error  bond,  without  security,  does  not  operate  as  a 
supersedeas  of  the  judgment,  and  in  taking  such  bond  the  clerk  com- 
mits no  such  breach  of  duty  as  will  support  an  action  against  him.  Wil- 
liams V.  Ilart,  17  Ala.  102.  A  supersedeas  was  revoked  in  case  of  a 
prisoner  who  escaped.     Sherman's,  etc.,  14  Gratt.  677. 


CH.  XIX.]  WRIT    OF   ERROR.  657 

prosecution  of  a  writ  of  error,  and  the  writ  will  be  dis- 
missed on  motion.^ 


§  86.  The  usual  course  of  proceeding  in  error  is,  first  a 
writ  in  the  nature  of  a  mandamus  from  the  court  above 
to  the  court  below,  commanding  the  latter  to  send  the 
record  and  process  of  the  suit  in  question  to  the  court 
above.  Second,  a  scire  facias  ad  audiendum  en-ores  is 
directed  to  the  sheriff,  commanding  him  to  summon  the 
defendant  in  error  to  appear  before  the  court  above. 

§  87.  The  practice  in  New  Hampshire,  with  respect  to 
the  return  to  he  made  to  a  writ  of  error,  is  as  follows  : 
Upon  the  delivery  to  him  of  the  writ,  the  clerk  of  the 
Court  of  Common  Pleas  makes  out  a  transcript  of  the 
record  and  also  a  return  upon  the  writ,  with  a  seal  affixed, 
and  presents  it  to  the  chief  justice,  who  signs  the  certifi- 
cate of  return,  and  the  writ  and  transcript  are  then  sent 
to  the  Superior  Court.     This  practice  is  correct.^ 

§  88.  It  is  improper  to  insert  an  assignment  of  errors 
in  a  writ  of  error.  The  errors  should  be  stated  in  the 
sci.  fa.^ 

%  89.  The  assignment  of  errors  is  usually  filed  in  the 
clerk's  office.  If  filed  before  the  issuing  of  the  scire  facias, 
it  may  be  inserted  therein.  The  practice  upon  this  point 
is  generally  regulated  by  express  statute.  In  case  of  ne- 
glect to  assign  errors,  the  writ  is  dismissed,  and  any  super- 
sedeas itself  superseded.^ 

§  90.  An  error  going  to  the  foundation  of  the  action 
will  not  be  waived  by  an  omission  specially  to  point  it 

1  Smith  V.  Jack,  2  Watts  &  Scrg.  ^  Peirce  v.  Adams,  8  IMass.  383. 

101.  *  See   Phelps  v.  Tilton,  17  Ind. 

^  Rochester  v.  Roberts,  5  Fost.  423;  Henry  ?>.  Coats,  ib.  161. 
495. 

42 


658  THE   LAW    OF   NEW    TRIALS.  [CH.  XIX. 

out  ill  the  assignment  of  errors.  But,  if  such  error  can  be 
cured  by  a  reinitUtiu\  the  judgment  will  be  reformed  at 
the  cost  of  the  appellant,  unless  objection  was  taken  in 
the  court  below\' 

§  91.  In  general,  more  especially  in  civil  cases,  causes 
of  complaint  not  specially  noticed  in  the  assignment  of 
errors  are  not  available.^  Or  wdiere  not  assigned  in  accord- 
ance with  the  rules  of  court.  The  failure  to  assign  them, 
as  directed  by  the  rules,  is  a  w^aiver.^ 

91(2.  In  Connecticut,  upon  a  motion  in  error,  there  must 
be  a  special  assignment  of  the  errors  relied  on  before  the 
trial.^ 

§  92.  In  Alabama,  in  civil  cases,  the  practice  of  the 
appellate  court  is,  to  decide  only  points  presented  by  those 
assignments  of  error  on  which  counsel  insist  in  argu- 
ment.' 

§  93.  In  Illinois,  it  is  too  late  to  assign  additional  errors 
after  argument  commenced.*^ 

§  93a.  A  cross  assignment  of  errors  w^ill  not  be  consid- 
ered by  the  court,  unless  by  consent  of  parties.'^ 

§  94.  For  mistake  in  the  time  when  a  writ  of  error  from 
the  Supreme  Court  of  the  United  States  is  returnable,  it  is 
void,  and  ^vill  be  dismissed.  It  cannot  be  amended,  nor 
can  the  mistake  be  cured  by  a  citation  from  the  Supreme 
Court.**     So  a  writ  of  error  cannot  be  amended  in  Mis- 

>   Wetmore    v.  Woodliouse,    10  ^  Robinson   v.  Tipton,  31   Ala. 

Tex.  33.  595. 

2  Smith   V.   Williams,    3G    Miss.  ^  Bristol «.  Cliicago,  31  111.  605. 
545  ;  Prater  v.  Darby,  24  Ala.  496.  '  Charles  v.  Dubose,  29  Ala.  367. 

3  Thompson  v.  McConnell,  1  *  Insurance  Co.,  &c.  v.  ]\Iorde- 
Grant,  396.  cai,  21  IIow.  195  ;  Porter  v.  Foley, 

*  Tolland  t).  Willington,  26  Conn.     ib.  393. 
578. 


CII.  XIX.]  WRIT    OF    ERROR.  659 

souri,  tliG  statute  of  5  Geo.  I.,  c.  13,  not  Laving  been  re- 
enacted  in  this  State.^  But,  in  Michigan,  the  Supreme 
Court  has  power  to  allow  amendments  to  assignments  of 
errors,  and  will  exercise  the  power  where  justice  requires 
it.  But  the  application  must  be  seasonably  made.  Thus, 
where  four  weeks  in  term  elapsed,  after  filing  joinder  in 
error,  before  the  application  was  made,  the  motion  was 
denied.^ 

§  95.  Misdescription  of  the  judgment  in  a  writ  of  error 
is  o-ood  2:round  for  motion  to  dismiss.  So  if  the  bond  be 
given,  or  the  citation  issued,  to  a  person  other  than  a  party 
to  the  original  suit.^  But  a  writ  of  error  need  not  be  so 
minutely  certain,  as  to  preclude  the  possibility  of  any 
other  record  like  that  required  to  be  brought  up.^ 

§  96.  Two  or  more  judgments  or  decrees  may  be  em- 
braced in  the  same  writ  of  error,  where  they  are  rendered 
on  similar  suits,  and  founded  on  the  same  principles.^  But 
not  final  decrees,  distinct  from  each  other,  and  rendered 
at  difl[erent  times.^ 

§  97.  A  writ  of  error,  which  does  not  set  out  the  names 
of  the  parties  to  the  judgment,  will  be  dismissed  on 
motion.^ 

§  98.  In  Texas,  it  is  not  essential  that  the  petition  for  a 
writ  of  error  should  state  any  grounds  on  which  it  is 
asked.  The  citation  is  sufliciently  explicit,  if  it  gives  the 
names  of  the  parties,  the  date  of  the  judgment,  and  the 

'  Frernon  v.  Carondclet,  25  Mis.  ^  Colyer  v.  Thompson,  2  Monr. 

62.  16 ;  Powers  v.  Lillie,  Kirby,  IGO. 

2  Parsons  v.  Copeland,  5  INIich.  <=  Carncal  v.  May,  2  A.  K.  Marsh. 
144.  587. 

3  Davenport  B.Fletcher,  10  How.  ^  gmyth  v.  Strader,  12  Uow. 
143  327.     See  Schoficld  v.  SeUley,  31 

^  Brown  v.  McKee,  1  J.  J.  Marsh.     111.  515  ;  17  lud.  43. 
471. 


660  THE    LAW    OF    NEW    TRIALS.  [CH.  XIX, 

nunilxT  of  tliG  case  on  tlic  docket.^  So  if  tlic  judgment  is 
correctly  described  in  the  petition,  but  misdescribed  in 
the  citation,  a  copy  of  the  former  accompanying-  the  latter, 
the  latter  may  be  amended,  and  the  writ  will  not  be  dis- 
missed.^ 

§  99.  ISTothing  can  be  assigned  for  error  in  fact,  of  which 
the  party  might  have  taken  advantage  in  the  court  below. 
Nor  which  contradicts  the  record.  (See  §  58.)  There- 
fore, where  a  suit  was  brought  on  a  probate  bond,  and 
judgment  recovered  in  the  name  of  D.  P.,  as  judge  of 
probate;  held,  the  fact,  that  D.  P.  ceased  to  be  judge  be- 
fore such  judgment,  could  not  be  assigned  for  error.^ 

§  100.  Error  cannot  be  assigned  on  a  matter  collateral  to 
the  action  in  the  court  below.^ 

§  101.  "Wliere  the  plaintiff  in  error  makes  the  general 
assignment,  and  then  assigns  particular  causes,  he  cannot 
insist  upon  other  particular  causes  under  the  general 
assignment.  If,  however,  the  court,  on  inspection  of  the 
record,  discover  a  fatal  defect,  not  specially  assigned,  it 
will  be  their  duty  to  reverse  the  judgment.^ 

§  102.  On  error,  after  the  case  was  argued  and  sub- 
mitted, it  appeared  that  there  was  no  special  assignment 
of  errors.  The  case  was  therefore  remanded,  with  liberty 
to  make  a  special  assignment,  and  to  re-argue  the  case, 
before  the  court  of  errors,  upon  such  terms  as  the  court 
below  should  impose.® 

§  103.  In  general,  no  person  can  bring  a  writ  of  error 

'  Turner  v.  Hamilton,    G    Tex.  ''  Irwin  n.  Gallagher,  8  S.  &  R. 

250.  528. 

2  Owen  V.  Tankersly,  13  Tex.  38.  s  Crandall  v.  State,  10  Conn.  339. 

3  Wetmore  v.  Plant,  5  Conn.  541  ;  ^  Bissell  v.  Spencer,  8  Conn.  504. 
Hill  V.  West,  4  Yeat.  385. 


en.  XIX.]  WRIT    OF    ERROR.  661 

who  is  not  a  party  or  privy  to  the  record. '(a)  Thus,  in 
case  of  land  sold  on  execution,  the  judgment  debtor  can- 
not bring  a  writ  of  error  to  reverse  a  judgment,  recovered 
in  a  controversy  between  the  several  judgment  creditors, 
as  to  the  priority  of  their  respective  claims.^  So  where 
A.  sued  B.  on  a  note,  which  had  been  indorsed  to  A.  by 
C,  and  judgment  was  obtained  for  A. ;  held,  C.  could  not 
bring  a  writ  of  error  for  its  reversal,  on  the  ground  that 
he  was  interested  in  the  note  by  a  collateral  agreement 
between  him  and  A.^  Nor  can  any  one  be  made  a  defend- 
ant in  the  writ  of  error,  who  was  not  a  party  to  the  judg- 
ment in  the  inferior  court.'* 

§  104.  The  rule  is  sometimes  stated  in  the  qualified 
form,  that  no  person  can  bring  a  writ  of  error  who  is  not 
a  party  or  privy  to  the  record,  or  who  is  not  injured  by 
the  judgment.'  That  a  stranger  to  a  judgment  cannot 
sue  out  a  writ  of  error  thereon.^ 

§  105.  In  ejectment,  where  all  that  is  claimed  is  recov- 
ered, one  lessor  of  the  plaintifl"  cannot  bring  a  writ  of  error 
against  another,  because  too  much  was  recovered  on  the 
demise  of  the  latter,  and  too  little  on  that  of  the  former. 

'  Bayard  v.  Lombard,    9   IIow.  *  Payne  v.  Nilos,  20  How.  219. 

530;   3  Tex.  424;  Sturms,  2.")  111.  ^  Howse   v.   Judson,  1   Branch, 

390;  Robinson  v.  Magarity,  28  ib.  133;  Ailing  v.  Sliclton,  16  Conn. 

423  ;  Dupree  v.  Perry,  18  Ala.  34.  436. 

2  Bayard  i'.  Lombard,  9  How.  ^  steel  v.  Bridenbach,  7  W.  &  S. 
530.  150. 

3  Smitli  V.  Gerlack,  2  Tex.  424. 

(a)  "Where,  in  a  case  brought  up  to  the  Supreme  Court  of  the  United 
States  by  writ  of  error,  it  appeared  to  the  court,  by  aflidavits  and 
other  evidence  filed  by  persons  not  parties  to  the  suit,  that  there  was  no 
real  dispute  between  the  plaintiif  and  defendant  in  the  suit,  but  on  the 
contrary  that  their  interest  was  identical,  and  was  adverse  to  the  inter- 
ests of  the  persons  filing  the  alTidavits  ;  held,  the  judgment  of  the  Circuit 
Court  entered  j)ro/o/-?/ia  was  a  nullity  and  void,  and  the  writ  of  error 
must  be  dismissed.  Lord  v.  Veazie,  8  How.  251.  See  Woodruff  i". 
Bacon,  34  Conn.  181. 


662  THE    LAW    OP   NEW    TRIALS.  [CH.  XIX. 

The  rights  of  each  can  only  bo  determined  between  them- 
selves.^ 

§  IOC).  The  general  mile  is  applied  in  case  oi  joint  par- 
ties.    All  must  be  parties  to  the  writ  of  error.^ 

§  107.  A  husband  must  join  his  wife  in  a  writ  of  error.^ 

§  108.  Where  debt  was  brought  against  three  on  a 
joint  and  several  promissory  note,  one  of  whom  pleaded 
nil  debet,  and  there  was  an  issue  thereon,  and  a  verdict 
and  judgment  in  his  favor,  but  no  judgment  as  to  the 
other  two;  held,  a  writ  of  error  was  properly  sued  out 
against  all.'* 

§  109.  The  qualification  is  sometimes  added,  that  all 
the  parties  aggrieved  may  join  in  the  writ  of  error,  and 
may  ask  a  reversal  of  the  judgment,  in  those  matters 
wherein  it  aiiects  injuriously  and  erroneously  their  respec- 
tive rights.'  That  all  the  j)roper  parties  must  join,  and  no 
one  who  has  not  been  prejudiced  by  the  judgment.^ 

§  110.  If  a  writ  against  two  is  served  on  only  one  of 
them,  and  judgment  rendered  against  both,  both  must 
join  in  a  writ  of  error.'' 

'  Fortune  V.  Center,  2  Ohio  (N.  Allen,  G3 ;  Eggleston  v.  Buck,  31 

S  )    527  in.  254 ;   Thorp  v.  Thorp,  40  ib. 

2  'Knox  V.  Costello,  3  Bur.  1789 ;  113. 

Bahcock  v.  Sivnhorn,  3  Min.  141  ;  3  sty,  254,  280;  Haines  ».  Corliss, 

Hottle   V.  Kindle,  8   Blackf.  205;  4  Mass.  059  ;  McNamara  «.  Fisher, 

Carey  v.  Giles,  10  Geo.  1 ;  Branch,  8  T.  R.  302 ;  McPhail  «.  Mosely, 

&c.  V.  McCollum,  20  Ala.  280 ;  Un-  14  Ala.  740. 

derhill  v.  Thomas,   24  Tex.  283 ;  ^  Bank  of  the  State  «.  Kerby,  4 

Olcott  V.  The  State,  5  Gilm.  481 ;  Eng.  345. 

State,   &c.    -y.   Wilson,    3   ib.    89:  s  Hancock  «.  Metz,  15  Tex.  205  ; 

Harrington  v.  Roberts,  7  Geo.  510;  Coe  v.  Turner,  5  Conn.  86;  Chris- 

Huncr  v.  Iteevcs,  2  Greene  (Iowa),  man  v.  Miller,  15  Tex.  159. 

190 ;   Dill  V.  Jones,  2  Kelly,   79 ;  ^  Jaqueth  v.  Jackson,  17  Wend. 

Carey  v.  Rice,  ib.  408;  GriHin  v.  434. 

Wilson;    19   Ala.    27;    Burger  v.  i  Gay  «.   Richardson,    18   Pick. 

Potter,  32  III.  00 ;  Baker  ».  Backus,  417. 
ib.  80.     See   Whiting  t).  Cook,  8 


CII.  XIX.]  WRIT   OF   ERROR.  GG3 

§  111.  "Writs  of  error,  if  defective,  may  be  amended  by 
the  record,  but  not  so  as  to  strike  out  the  name  of  one  as 
plaintiff  and  malce  him  defendant,  unless  the  record  shows 
that  he  was  improperly  made  a  plaintiif,  when  he  should 
have  been  a  defendant.^ 

§  112.  One  plaintift'  cannot  assign  error  against  another.^ 

§  113.  A  writ  of  error  wnll  be  dismissed  on  motion,  for 
a  misjoinder  of  the  defendants  appearing  on  inspection  of 
the  writ.^ 

§  114.  "Where  a  w^rit  of  error  is  prosecuted  by  the  defend- 
ants in  a  chancery  suit,  a  part  of  them  cannot  assign  that 
for  error  which  affects  only  tlieir  co-defendants.^  And, 
wdicre  parties  are  not  jointly  interested  in  reversing  a 
decree,  they  need  not  join  in  the  same  writ  of  error  to 
reverse  the  decree,  but  several  writs  will  lie  in  favor  of 
each.' 

§  115.  If  a  judgment  against  several  defendants  is 
reversed  for  error  as  to  a  part  of  them,  it  is  reversed  wholly.® 

§  116.  But,  w^here  some  will  not  prosecute  the  writ,  there 
should  be  a  summons  and  severance  J  Sometimes  accom- 
panied by  a  bond  of  indemnity.^  And,  in  case  of  judgment 
against  some  parties,  and  in  tavor  of  others,  the  writ  lies  in 
favor  of  the  former  alone.^  And  wdierc,  in  trespass  against 
three,  in  which  the  defendants  pleaded  the  general  issue, 
A.,  one  of  them,  severally,  and  the  others  jointly,  the  jury 
returned  a  verdict  that  "the  defendant  is  guilty,"  and 


'  Knox  «.  Steele,  18  Ala.  815.  ^  Yelv.  4;   2  Saim.   101   d.  ii.  ; 

2  Ibid.  Ilari-ravcs   v.   Lewis,  7  Geo.   10 ; 

3  Brown  v.  Levins,  G  Port.  414.  Knox  v.  Steele,  18  x\.la.  815. 

*  Barker  v.  Calliliau,  5  Ala.  70S.  »  lluiier   v.    Reeves,   2   Greene, 

*  Campbell  v.  Johnson,  4  Dana,  190. 

177.  '■>  1  Lev.  210 ;  Hob.  70. 
6  Benuer  v.  Welt,  45  Maine,  483. 


GG4:  THE   LAW    OF   NEAY    TRIALS.  [CII.  XIX. 

jn(li;-incnt  tlicrcon  was  rendered  against  A.,  without  taking 
any  notice  of  the  others ;  it  was  held,  that  A.  was  alone 
entitled  to  error,  and  that  a  writ  of  error  in  favor  of  the 
three  was  improvidently  issued,  and  must  be  quashed.^ 

§  117.  An  assignee,  under  the  United  States  Bankrupt 
Act  of  1841,  may  maintain  a  writ  of  error  to  reverse  a 
judgment  rendered  against  the  l^ankrupt.^  So  the  assignee 
of  an  insolvent.^ 

§  118.  A  creditor  cannot  sue  out  a  writ  of  error  to  a 
judgment  recovered  against  the  debtor.^  But  judgment 
creditors,  claiming  participation  in  a  common  fund,  have 
such  an  interest  in  the  order  of  court  for  its  distribution, 
as  to  entitle  them  to  a  writ  of  error.^ 

§  119.  A  tenant  in  possession,  upon  whom  notice  in 
ejectment  was  served,  cannot,  after  others  are  made  defend- 
ants to  the  suit  (the  tenant  being  no  party  to  the  suit), 
maintain  a  writ  of  error.^  'Nor  to  reverse  a  judgment 
taken  by  default ;  it  must  be  sued  out  in  the  name  of  the 
casual  ejector.^ 

§  120.  It  is  held,  that  a  party  purchasing  land  after  a 
judgment,  which  is  a  lien  upon  the  land,  and  of  which  he 
was  bound  to  take  notice,  cannot  prosecute  a  writ  of  error, 
even  if  the  land  is  endangered  b^^  the  lien.^  But  a  party 
purchasing  an  interest  during  a  suit  may  maintain  a  writ 
of  error  in  the  names  of  those  from  whom  he  purchases.^ 
And  a  deputy  sheriff',  who  is  the  purchaser  at  a  sheriff" 's 

'  Shaw  V.  Blair,  4  Cnsli.  97.  ^  Campbell   v.   Smith,  3   A.  K. 

2  Jacobs. United  States,  1  Brock.     Marsh.  118. 

520  ;  Day  v.  Laflin,  6  Met.  280.  ?  Walker  v.  Badger,  3  Bibb,  433. 

3  Johnson  v.  Thaxter,  7  Gray,  See  Stiles  v.  Jackson,  1  Blackf. 
242.  214  ;  Hoe  v.  Bank,  &c.,  3  Ham.  26. 

*  Black  V.  Kirgan,  3  Greene,  45 ;        >>  Howse  v.   Judson,  1   Branch, 

Sherer  v.  Collins,  2  Harr.  181.  133;  Samuel  v.  Sayrc,  5  Dana,  22G. 

6  Adkins  v.  Baker,  7  Geo.  56.  ^  Mason  v.  Peck,  7  J.  J.  Marsh. 

300. 


en.  XIX.]  WRIT   OF   ERROR.  665 

sale.,  has  sufficient  interest  to  support  a  writ  of  error  to  a 
judgment,  setting  aside  the  sale  on  motion.'  So  when  a 
judgment  is  transferred  according  to  hiw,  and  the  execu- 
tion levied  on  property,  and  another  person  interposes  a 
claim;  the  assignee  is  the  proper  party  to  a  writ  of  error.^ 

§  121.  The  following  summary  view  of  the  law,  ujion 
the  question  what  persons  miay  maintain  a  writ  of  error  to 
reverse  a  judgment  to  which  they  are  not  nominal  parties, 
on  the  ground  of  jjrivity  or  an  interest  in  the  subject  mat- 
ter, is  found  in  a  late  case  in  Massachusetts:  "A  party, 
privy  in  estate  with  the  party  against  whom  a  judgment 
has  been  rendered,  may  have  a  writ  of  error  to  reverse  it. 
As  where  an  erroneous  judgment  is  rendered  against  a 
tenant  for  life  or  years,  the  owner  of  the  remainder  or  the 
reversion  may  maintain  a  writ  of  error  after  the  term  is 
expired.  So  by  him  in  reversion,  after  an  estate  tail  is 
determined.^  But  if  the  tenant  alien,  ■pendente  lite^  the 
alienee  shall  not  have  crror.^  It  is  true  that  it  is  laid  down 
in  Bac.  Ab.  Error  B,  that  '  no  person  can  bring  a  writ  ot 
error  to  reverse  a  judgment,  who  was  not  a  party  or  privy 
to  the  record,  or  who  was  not  injured  by  the  judgment,  and 
therefore  is  to  receive  advantage  by  the  reversal  thereof.' 
So  it  is  laid  down  in  9  Vin.  Ab.  Error  K,  1,  that  'the  writ 
of  error  shall  be  brought  by  him  who  should  have  the 
thing  for  which  the  judgment  is  erroneously  given,  if  the 
judgment  had  not  been  given.'  But  these  rules  are  laid 
down  too  broadly,  and  must  be  understood  in  a  restricted 
sense;  for  it  is  immediately  after  laid  down  in  Viner,  that 
'  none  shall  have  a  writ  of  error,  unless  he  be  party  or  privy 
to  the  judgment.'  This  latter  proposition  appears  to  be 
too  much  restricted ;  for  a  privy  in  estate  may,  as  before 
laid  down,  maintain  a  writ  of  error  in  certain  cases."* 


>  Flournoy    v.  Smith,    3    How.  *  1  Rol.  Ab.  748. 

Miss.  62.  ^  Pot-  Wilde,  J.    Leonard  v.  Brj-- 

2  Slayton  v.  Jones,  15  Geo.  89.  ant,  11  Met.  372. 

3  Com.  Dig.  Pleader,  3  13.  9. 


G66  THE    LAW    OF   NEW    TRIALS.  [CE.  XIX. 

§  122.  Questions  liavo  often  arisen  in  case  of  a  party's 
death. ^  ^AHien  it  appears  from  the  record  that  the  persons 
named  as  plaintiffs  in  the  writ  of  error  were  dead  when 
the  writ  was  sued  out  and  filed,  and  that  their  legal  represen- 
tatives arc  not  parties,  it  will  be  dismissed.^ 

§  123.  A  writ  of  error  cannot  be  prosecuted  in  the  name 
of  "  the  unknown  heirs "  of  a  party .^  Where  the  error 
assigned  is,  that  the  defendant  in  error  was  dead  at  the 
rendition  of  the  judgment,  the  executor  or  administrator 
must  be  made  party  defendant.  Service  of  notice  upon 
the  attorney,  after  the  death  of  the  party,  is  invalid.* 

§  124.  In  a  real  action,  if  a  party  to  the  judgment  die, 
his  heirs  must  be  made  parties  to  a  writ  of  error.^  But, 
in  real  actions,  the  death  of  either  party,  after  a  writ  of 
error  sued  out,  does  not  abate  the  suit.^ 

§  125.  In  ISTew  Jersey,  if  the  defendant  in  error  die 
after  errors  assigned,  his  executors  may  proceed  until  judg- 
ment is  affirmed,  as  if  he  were  living,  and  then  the  judg- 
ment must  be  revived  by  sci.faJ 

§  126.  In  Kew  York,  where  a  plaintiff*  in  error  dies 
pending  a  writ  of  error,  judgment  will  be  entered  as  of 
the  term  when  he  was  living.^ 

§  127.  In  Ohio,  where  the  defendant  in  error  dies  after 
assignment  of  error  and  joinder,  the  case  may  proceed  to 
judgment  without  making  his  representatives  parties.^ 

'  See    Dolaplaine   v.  Bergen,    7  ^  Porter  v  Rnmmery,  10  Mass. 

Hill,  591;  Cisna  v.  Beach,  15  Ohio,  64;  2  Saim.  4G  n.  6. 

300;  McClane,   v.  ]3oon,   0  Wall.  ^  Macker  v.  Thomas,  7  Wheat. 

244 ;  Bostwick  v.  Williams,  40  111.  530. 

113  7  Harwood  «.  Murphy,  1  Green, 

2  Neves  v.  Scott,  15  Geo.  510.  193. 

3  Bowie,  &c.  V.  Rouse,  3  Gilm.  ^  King  v.  Dunn,  21  Wend.  258. 
408.  ^  Spurk  v.  Vangundy,  3  Ham. 

1  Cisna  v.  Beach,  15  Ohio,  300.      307 ;  McKinney  «.  Carroll,  13  Pet. 

GG. 


en.  XIX.]  WRIT  OF  ERROR.  667 

§  128.  Where  one  sued  as  garnishee  of  the  defendant 
was  after  his  death  appointed  administrator;  held,  he  could 
not  assign  errors,  as  administrator,  in  the  judgment  against 
the  garnishee.^ 

§  129.  In  case  of  the  death  of  one  of  joint  parties ;  he 
must  he  still  named  in  the  writ  of  error.^ 

§  130.  In  an  action  at  law  by  two  partners,  upon  the 
death  of  one,  the  action  proceeds  in  the  name  of  the  sur- 
vivor, and  it  is  error  to  make  the  administrator  a  party. 
If,  however,  the  administrator  is  thus  made  a  party  at  his 
own  request,  it  is  not  an  error  of  which  he  can  avail 
himself.^ 

§  131.  Questions  may  also  arise  in  connection  with 
agency.  Thus  an  execution  was  issued  by  a  justice  at  the 
suit  of  C.  against  the  goods  and  chattels  of  A.,  and  levied 
on  a  slave  which  A.  made  oath  was  the  property  of  W., 
and  held  by  the  affiant  as  his  agent.  A  trial  of  the  right 
of  property  was  had  between  the  plaintifi'  in  execution 
and  A.,  as  agent,  and  the  slave  condemned  to  satisfy  the 
execution.  A.  then,  upon  his  petition,  obtained  a  certio- 
rari^ and  entered  into  bond  with  M.  as  his  surety,  and  the 
cause,  being  removed  to  the  Circuit  Court,  was  dismissed 
on  motion  of  C. ;  whereupon  TV.  applied  for  a  writ  of 
error,  and  executed  a  bond  with  surety  for  its  prosecu- 
tion. Held,  that  if  W.  was  the  owner  of  the  slave,  the 
claim  of  property  and  all  subsequent  proceedings  should 
have  been  in  his  name,  instead  of  the  name  of  A.  as  agent ; 
that  W.  could  not  prosecute  a  writ  of  error  on  the  judg- 
ment of  dismissal ;  and  that  the  judgment  was  correct.'* 

§  132.  Though  he,  in  whose  name  a  writ  of  error  is 

>  Seawell  ?).  Lowcry,  IC)  Tex.  47.         '  Koirlo   v.  Shrivcr,  11    Gill   & 
2  Bremer  v.  Turner,  1  Sir.  233;  3    Johns.  AOT). 
Saun.  101  d.  n.  "  8  Ala.  r)oO. 


668  THE    LAW    OF   NEW    TRIALS.  [CH.  XIX. 

prosecuted,  express  a  desire  to  dismiss,  yet,  if  the  court 
be  satisfied  that  it  is  prosecuted  for  the  benefit  of  another, 
a  dismissal  will  be  refused.' 


§  133.  AV^Iiere  a  will  case  was  submitted  to  a  judge,  with 
power  to  settle  the  whole  controversy,  and  fix  the  counsel 
fees,  which  he  did ;  a  writ  of  error  was  dismissed,  because 
it  did  not  make  the  counsel  parties.^  But  when  a  submis- 
sion provided,  among  other  things,  that  the  award  should 
fix  the  counsel  fees;  held,  the  counsel  need  not  be  made 
parties  to  a  motion  to  set  aside  the  award,  nor  to  a  writ 
of  error  to  the  ruling  on  that  motion.^ 

§  134.  A  writ  of  error  coram  vobis  will  be  quashed, 
where  the  names  of  the  parties  in  the  judgment  are  not 
truly  stated.^ 

§  135.  But  the  omission  of  the  addition  of  "junior"  to 
the  name  of  the  defendant,  in  the  writ  of  error,  is  no  cause 
for  quashing  the  writ,  where  there  is  any  other  descriptio 
personce  by  which  the  real  party  can  be  ascertained.^  So 
a  writ  of  error  was  not  sustained,  in  case  of  a  judgment 
against  Chase  Langmaid,  in  an  action  commenced  by  writ 
against  Charles  Langmaid,  actually  served  upon  Chase, 
and  amended,  after  default,  by  substituting  Chase  for 
Charles,  without  notice.^ 

§  136.  In  general,  a  writ  of  error  cannot  be  considered 
until  service  has  been  made  or  acknowledged.''     Though 


'  England  v.  Wickwarc,  4  J.  J.  ^  Langmaid  v.  Puffer,  7  Gray, 

Mar.  378. 

2  Barksdale  v.  Bunkley,  26  Geo.  ?  Mills  v.  Ba?by,  4  Tex.   330 
398.  Davenport  v.    Field,    13    ib.    94 

3  Soutli  Carolina,  &c.  v.  Moore,  Chapman    v.    Gray,  8   Geo.    337 
28  Geo.  398.  Pvolierts  v.   Landrum,  3  Tex.   10 

''  Brown  v.  Davenport,  4  AVend.  .James  v.  Gray,  ib.  514;  Chambers 

205.  V.  Uodges,  ib.  517. 
5  Fleet  V.  Young,  11  Wend.  533. 


ClI.  XIX.]  WRIT   OF   ERROR.  669 

the  court  sometimes  proceed  ex  parte  upon  a  return  of  non 
est  inventus.^ 

§  137.  In  Texas,  if  the  defendant  in  error  cannot  l)e 
found,  the  original  process  may  be  served  on  the  attorney 
of  record.^  And  where  the  record  shows  that  the  attor- 
ney served  was  attorney  of  record,  it  need  not  be  stated  in 
the  return  of  the  officer.^ 

§  138.  The  validity  of  a  writ  of  error  docs  not  depend 
upon  the  scire  facias.  If  the  latter  is  informal  or  insuffi- 
cient, an  alias  may  issue,  which,  when  served,  gives  the 
court  jurisdiction.  Jurisdiction  will  also  be  conferred  by 
the  appearance  of  the  parties.* 

§  139.  There  is  a  diiFerence  between  quashing  and  dis- 
missing a  writ  of  error.  The  condition  of  a  bond,  to  pay 
the  judgment,  &c.,  if  the  writ  be  dismissed,  is  not  broken 
by  refusal  to  pay  on  the  judgment  of  the  court  quashing 
the  writ.^ 

§  140.  K  the  defendant  in  error  files  a  copy  of  the 
record  within  the  time  prescribed,  and  the  plaintiff  sub- 
sequently, but  in  due  time,  files  his  record,  the  defendant's 
case  will  be  dismissed.^  Where  thirty-five  days  inter- 
vened between  the  signing  of  the  bill  of  exceptions  and 
the  suing  out  and  serving  of  the  writ  of  error,  citation, 
and  notice,  the  writ  of  error  was  dismissed.^  So  where 
no  assignment  of  errors  has  been  filed,  at  the  time  a  writ 
of  error  is  called  in  its  order.^  But  not  for  the  reason  that 
the  same  cause  has  been  previously  before  the  Sujireme 
Court,  where  the  error  assigned  is  diflcrent,  and  the  ob- 
jection not  raised  or  pleaded  in  the  court  below.^ 

'  Vandegrift  v.  Page,  5  Ilarring.  ^  Bosley  r».  Bruncr,  24  ]\riss.  457. 

439.  ^  Hartshorn  v.  Day,  18  How.  28. 

2  Owen  V.  Tankersly,  13  Tex.  38;  ^  Porry  v.  Ilii^jgs,  (i  Geo.  43. 
Forshoy  r.  Railroad,  10  Tex.  516.  «  Gonckc  v.  Garrett,  G  Geo.  119. 

3  ]\Iills  p.  ^o^vard,  12  Tex.  9.  ^  llargraves    v.    Lewis,   6   Geo. 
*  Birkby  v.  Birkby,  15  111.  120.       207. 


670  THE   LAW    OF   NEW    TRIALS.  [CII.  XIX. 

§  141.  Limitation  will  not  be  ground  of  dismissal,  unless 
there  is  a  motion  to  dismiss.^ 

§  142.  A  writ  of  error  will  be  dismissed,  and  judgment 
affirmed,  for  delay  in  certifying  the  transcript  of  the 
record.2  q^  jf  r^  (.Qpy  \^  j-^q^;  served  and  an  entry  made 
thereof  within  the  time  required.^ 

§  143.  "Where  a  motion  for  affirmation  by  the  defendant 
in  error,  and  a  motion  to  withdraw  his  writ  of  error  by 
the  plaintiff,  are  pending  at  the  same  time ;  the  court  will 
grant  that  which  the  nature  and  justice  of  the  case  require.* 

§  144.  "Where  there  is  no  appearance  for  a  plaintiff  in 
error,  the  case  being  called  for  hearing,  and  the  plaintifi' 
being  himself  called  ;  upon  motion  of  the  defendant,  the 
record  will  be  opened,  and  the  judgment,  as  we  have  seen, 
affirmed.* 

§  145.  The  plea  in  nullo  est  erratum  admits  all  the  mate- 
rial facts  to  be  well  alleged.^ 

§  146.  If  this  plea  is  joined  with  that  of  the  statute  of 
limitations,  the  party  will  be  required  to  elect  between 
theni.^ 

§  147.  Upon  a  writ  of  error,  nothing  can  be  assigned 
for  error  which  contradicts  the  record.  If  an  error  in  fact 
is  well  assigned,  a  plea  of  in  nullo  est  erratum  is  a  confes- 
sion of  it.  If  the  defendant  in  error  intends  to  dispute 
the  truth  of  the  assignment,  he  should  deny  the  fact  and 
join  issue  thereon,  and  thus  have  the  matter  tried  by  a 

'  Williams  v.  Craig,  10  Tex.  437.        ^  Rogers  v.  Alexander,  2  Greene 

2  Crawford  v.  Ferryman,  7  Geo.     (Iowa),  337. 

558.  5  Stiles  v.  Chapman,  7  Geo.  1. 

3  Turner  v.  Collins,  8  Geo.  252  ;  ^  Hago-ett  v.  Com.,  3  IMet.  457; 
Mears  v.  Garretson,  2  Greene  (lo-  Merrill  a.  Suffolk,&c.,  31  Maine,  57. 
wa),  310.  ,  '  Acker  «.  Ledyard,  1  Denio,G77. 


CII.  XIX.]  WRIT   OF   ERROR.  671 

jury.  If  an  error  in  fact  be  assigned  which  is  not  assign- 
able, or  if  it  be  ill  assigned,  "m  nullo  est  erratuiii'^  is  not  a 
confession,  bnt  is  taken  only  for  a  demurrer.  "Where  the 
plaintiff  assigned  for  error,  that  the  judgment,  which  pur- 
ported to  have  been  rendered  and  entered  up  against  him, 
was  entered  up  by  the  clerk  of  the  court  without  the 
authority  or  order  of  the  court,  held,  the  assignment  was 
bad,  as  contradicting  the  record  ;  also  that  the  plea  of  in 
nullo  est  erratum  did  not  confess  the  fact  alleged,  but  was 
only  in  the  nature  of  a  demurrer.^ 

§  148.  Where  the  cause  assigned  for  reversal  is,  that  a 
part  of  the  defendants  in  the  original  suit  were  minors 
and  did  not  answer  by  guardian  or  next  friend,  and  the 
defendant  in  error  pleads  in  nullo  est  erratum;  the  fact 
alleged,  not  being  traversed  by  the  plea,  is  to  be  treated  as 
admitted ;  that  plea  putting  in  issue  only  such  errors  as 
appear  on  the  face  of  the  record.^ 

§  149.  A  release  of  errors  for  a  valuable  consideration 
is  a  bar  to  a  writ  of  error.^  And  if  a  plea  of  a  release  of 
errors,  in  the  appellate  court,  be  sustained  by  the  proof, 
the  judgment  of  the  court  below  will  be  afErmed.* 

§  150.  A  release  of  errors  by  one  partner  will  bind  his 
copartner.' 

§  151.  But  an  error  in  a  judgment,  prejudicial  to  a  de- 
fendant, cannot  be  cured  by  a  release  of  the  plaintifl', 
entered  on  the  record  at  a  subsequent  term.^  And  a 
release  of  errors,  whether  actual  or  constructive,  cannot 
form  the  subject  of  a  mere  motion  to  dismiss  the  writ  of 
error ;  it  must  be  pleaded.^ 

'  Claggett  to.  Simes,  11  Fost.  22.  ^  Smucker  v.  Larimore,  21  111, 

2  Boniicr  v.  Welt,  45  Maine,  483.  267. 

3  Baiucs  V.  Moody,  .'>  How.  Miss.  s  "VVood  v.  Goss,  21  111.  604. 
636.   8cc  Glackin  v.  Zcllcr,  o2  Barb.  e  Buford  v.  Biirdett,  3  Monr.  226. 
147  ;  Ruckman  v.  Alhvood,  44  111.  ">  Yick  v.  Mauldiug,  1  How.  Miss. 
183  ;  Holt  V.  liees,  46  ib.  181.  217. 


G72  THE    LAW    OF   NEW    TRIALS.  [CIL  XIX. 

§  152.  An  averment  that  a  release  of  errors  is  obtained 
by  fraud  should  set  forth  the  facts  constituting  the  fraud.' 

§  153.  Questions  oi amendment  may  arise,  either  in  refer- 
ence to  the  original  proceedings  or  the  proceedings  in  error. 

§  154.  Where,  after  demurrer  to  a  declaration,  it  is 
amended,  an  irregularity  in  that  respect,  unless  objected 
to  at  the  time,  is  not  subject  to  objection  on  error.^ 

§  155.  In  the  Supreme  Court  of  the  United  States,  a 
writ  of  error  cannot  be  amended,  as  that  court  has  no  ju- 
risdiction unless  the  writ  be  correct.  Thus  a  mistake  of 
parties,  misplacing  the  names  of  the  plaintiff  and  defend- 
ant, is  fatal.^ 

§  156.  In  ISTew  Jersey,  the  Court  of  Errors  cannot 
amend  a  material  error  in  the  record  sent  up.  Such  error 
may  be  amended  in  the  court  below.  The  defendant  in 
error  should  allege  diminution  of  the  record,  and  sue  out 
a  writ  of  certiorari^  on  which  the  amended  record  may  be 
returned.  This  may  be  done  even  after  argument.  But 
such  an  amendment  would  hardly  be  allowed  on  any  terms 
at  a  period  of  two  terms  after  the  writ  of  error  was  re- 
turned, if  no  laches  was  imputable  to  the  plaintiff  in  error.^ 

§  157.  "Where  it  appeared  that  the  court  had  no  juris- 
diction of  the  cause,  on  account  of  omissions  in  the  decla- 
ration, the  cause  was  remanded,  to  give  the  plaintiff  an 
opportunity  to  amend.  * 

§  158.  The  nature  of  the  judgment  to  bo  rendered  upon 
a  writ  of  error,  where   the   plaintiff  in   error   prevails, 


•  Wood  v.  Goss,  21  111.  G04.  »  IIod.o:e  v.  Williams,  22  How.  87. 

2  Pcmam  V.  State,  etc.,  4  Pike,        »  Apgar  v.  Hiler,  4  Zabr.  808. 
202.  5  ^Yard  x.  Lathrop,  11  Tex.  287. 


CU.  XIX.]  "WRIT    OF    ERROR.  673 

-wholly  or  in  i)Urt,  depends  very  luucli  upon  the  circuiu- 
stanccs  of  the  case,  and  upon  local  statute  and  usage.^ 

§  159.  In  Massachusetts,  where  a  convict  brings  two 
writs  of  error  at  the  same  time,  one  to  reverse  an  original 
judgment,  and  the  other  to  reverse  a  sentence  to  addi- 
tional punishment,  founded  on  an  information  Avhicli  sets 
forth  such  original  judgment  as  one  of  the  grounds  of 
such  additional  punishment;  if  the  original  judgment  is 
reversed,  the  sentence  on  the  information  falls  with  it, 
and  will  also  be  reversed,  if  the  error  assigned  be  a  matter 
of  mere  law,  apparent  on  the  record,  although  the  original 
judgment  was  in  full  force  when  the  writ  of  error  was 
l^rousht  to  reverse  the  sentence  on  tlie  information.^ 

§  160.  In  replevin,  commenced  before  a  justice  of  the 
peace,  and  carried  to  the  Court  of  Common  Pleas  by 
appeal,  which  court  rendered  judgment  for  the  defendant 
for  a  return,  with  damages  and  costs,  the  plaintiff  brought 
a  writ  of  error,  on  the  ground  that  neither  court  had  juris- 
diction. So  much  of  the  judgment  as  awarded  a  return 
and  damages  was  reversed,  and  so  much  as  awarded  costs 
was  affirmed.^ 

§  161.  It  is  held  that,  if  the  judgment  is  reversed,  the 
Court  of  Error  must  give  the  same  judgment  which  the 
court  below  ought  to  have  given. ^  But,  elsewhere,  that, 
in  general,  judgment  on  a  writ  of  error  will  follow  success 
in  the  particular  issue.  It  is  proper,  however,  to  examine 
the  whole  record,  and  to  adjudge  either  for  the  plaintiff  or 
defendant,  according  to  the  legal  rights,  as  it  may  on  the 
whole  appear,  without  regard  to  the  issue  in  law  between 


'  Sec  Farquhiir  v.  :\IcFarUmd,  13  ^  Hutchinson  r.   The  Commou- 

Tex.  92;  Park  v.  Walker,  3  Snced,  wealth,  4  Met.  3o!). 

503  ;  Doolittlc  v.  Shelton,  1  Iowa,  3  Jordan  v.  Dennis,  7  Met.  -500. 

271;  Peck  v.  Stephens,  5  Gilm.  127.  «  Garr  v.  Stokes,  1  Ilarr.  403. 

43 


674  THE    LAW    OF   NEW    TRIALS.  [CII.  XIX. 

the  parties  -wliicli  may  Lave  been  raised  and  decided.^  And, 
in  Vermont,  in  a  case  standing  upon  pleadings  and  demur- 
rers, if  the  judgment  is  erroneous,  and  reversed,  the  court 
will  look  into  all  the  issues  standing  upon  the  record,  and 
render  such  a  judgment  as  the  court  below  should  have 
rendered.^ 

§  162.  When  an  infant  brings  a  writ  of  error,  the  court 
only  vacate  the  judgment,  but  do  not  set  aside  the  pro- 
ceedings altogether.^ 

§  163.  The  court  will  not  upon  error  reverse  a  judgment, 
where  generally  errors  in  law  have  been  assigned,  without 
ascertaining,  by  an  inspection  of  the  record,  that  the  judg- 
ment of  the  court  below  is  erroneous,  though  an  issue  of 
fact,  arising  upon  a  plea  of  the  statute  of  limitations 
made  by  the  defendant  in  error,  has  been  found  for  the 
plaintiiF.  Judgment  will  be  given  upon  the  same  princi- 
ples as  if  there  had  been  a  joinder  in  error.  The  plaintiii' 
in  error,  in  such  a  case,  in  New  York,  must  make  up  error 
books,  and  place  the  cause  on  the  calendar  at  a  general 
term,  and  either  party  may  give  notice  of  argument.* 

§  164.  A  statute,  giving  damages  at  the  rate  of  ten  per 
cent.,  on  affirmance  of  judgment  in  the  Supreme  Court, 
when  the  defendant  below  is  the  plaintiii*  in  error,  and 
has  superseded  the  judgment,  applies  to  judgments  for 
specific  money  demands  only,  and  does  not  embrace  judg- 
ments of  condemnation  in  trials  of  the  right  of  property. 
A  judgment  in  the  Supreme  Court,  which  awarded  ten 
per  cent,  damages  on  affirmance  of  a  judgment,  in  such 
case,  is  too  uncertain  to  enable  the  clerk  of  the  court 
below  to  compute  or  ascertain  the  amount  of  damages, 
and  to  that  extent  is  consequently  void.' 

•  Stephen  v.  The  State,  11  Geo.  »  Hymaiin  v.  Cook,  2  Denio,  201, 

235.  ^  Hooks  V.  Branch,  &c.,  18  Ala. 

2  Wires  v.  Farr,  24  Vt.  645.  451. 
»  Barber  v.  Graves,  18  Vt.  290. 


CII.  XIX.]  WRIT    OF   ERROR.  G75 

§  165.  In  case  of  a  verdict  and  judgment  in  ejectment, 
for  nominal  damages;  if  a  writ  of  error  has  been  sued  out 
by  the  defendant  and  security  given,  the  court  cannot 
interfere  to  enlarge  the  security,  to  cover  damages  which 
may  be  recovered  by  the  plaintift'  in  an  actioii  for  mesne 
proiits,  or  for  any  other  losses  which  he  may  sustain  by 
delay  in  prosecuting  the  writ  of  error.' 

§  166.  Where  there  was  no  final  judgment  against  one 
defendant,  the  writ  of  error  was  dismissed  as  to  him,  and 
it  was  ordered  that  a  judgment  nunc  pro  tunc  should  be 
entered  against  him  in  the  court  below.^ 

§  167.  An  entire  judgment  against  several,  erroneous 
as  to  one,  must  be  reversed  in  toto.^  Thus  a  judgment  on 
default,  in  an  action  on  contract,  against  two  persons,  one 
of  whom  was  an  infant.^  And  the  rule  applies  to  judg- 
ments upon  several  liabilities,  under  the  (New  York) 
statutes  authorizing  suit  against  different  parties  to  com- 
mercial paper.  As,  where  the  judgment  was  against 
maker  and  indorser,  and  the  alleged  error  was,  that  the 
maker,  when  an  infant,  appeared  in  the  suit,  in  which 
judgment  was  rendered,  by  attorney.^ 

§  168.  The  course  sometimes  adopted  by  the  court 
above  is,  to  remand  the  cause  to  the  court  below.^ 

§  169.  Upon  error  to  reverse  a  final  judgment,  erro- 
neously rendered  for  the  plaintifi",  on  demurrer  to  a  plea 
in  abatement,  if  an  execution  has  been  issued  and  collected, 
the  former  judgment  will  be  reversed,  the  proper  judg- 
ment ordered  upon  the  pleadings,  the  case  remitted  to  the 

'  Roberts  «.  Cooper,  19  ITow. 373.  *  Sargeant  v.  French,  10  N.  II. 

2  Fowler  v.  Morrill,  8  Tex.  153.  444. 

3  Harman  v.  Brotlierson,  1  Deuio,  ^  yan  Sclioonhoveni>.  Comstock, 
537 ;    Davis  v.  Campbell,  1    Ircd.  1  Denio,  (555. 

482.  ^  See    ]\IcMastcrs    v.   Blair,    31 

Penn.  467. 


676  THE    LAW    OF   NEW    TRIALS.  [CH.  XIX. 

Common  Pleas  for  further  proceedings,  and  a  writ  of 
restitution  awarded  for  the  amount  of  the  execution  issued 
in  the  Common  Pleas,  and  costs  thereon,  as  paid,  with 
interest,  as  damages,  and  the  costs  of  the  proceedings  in 
crror.^ 

§  170.  In  Vermont,  where  a  case  is  brought  into  the 
Supreme  Court,  standing  upon  issues  of  law,  on  demurrer, 
and  the  judgment  of  the  County  Court  reversed,  and  re- 
pleader awarded ;  the  case  should  be  retained,  until  by 
the  new  pleadings  some  issue  of  fact  is  joined,  wherel)y  it 
becomes  important  to  remand  it.  The  reversal  only  opens 
such  issues  as  were  affected  by  the  errors.^ 

§  171.  When  a  cause  is  reversed  and  remanded,  the 
inferior  court  cannot  re-examine  an  assignment  of  errors, 
on  which  it  had  previously  passed,  and  which  had  been 
reviewed  and  adjudged  insufficient  by  the  Supreme  Court. 
The  determination  of  the  Supreme  Court,  on  errors 
assigned,  is  the  law  of  the  case,  binding  alike  on  the  Su- 
preme and  inferior  court.  If  the  Circuit  Court,  on  a 
cause  being  remanded,  refused  to  permit  additional  errors 
to  be  assigned,  such  refusal,  being  discretionary,  cannot  be 
assigned  for  error  in  the  Supreme  Court.^ 

§  172.  In  Massachusetts,  where  the  court  below  renders 
an  erroneous  judgment  against  a  convict,  and  he  brings  a 
writ  of  error  to  reverse  it,  the  supreme  judicial  court 
cainiot  render  a  new  judgment,  nor  remit  the  case  to  the 
court  below,  in  order  that  a  new  judgment  may  be  ren- 
dered there,  but  can  only  reverse  the  judgment  and  dis- 
charo-e  the  convict."* 


"ft" 


'  Trow  V.  Messer,  32  N.  H.  ,"01.        *  Shepherd    v.    The    Common- 

2  Kinsman  v.  Paige,  34  Vt.  G.IG.      wealth,  3  Met.  410. 

3  Adams  v.  Llorsefield,   14  Ala. 

00  o 


CII.  XIX.]  WRIT    OF    ERROR.  677 

§  173.  In  Iowa,  where  tlic  judgment  of  a  justice  of  the 
peace  is  reversed  upon  writ  of  error,  the  cause  should  be 
remanded  to  the  justice,  or  a  trial  de  novo  awarded  in  the 
District  Court.^ 

§  174.  When  a  judgment  is  reversed  and  remanded, 
the  cause  may  be  taken  up  by  the  court  ])elow,  at  the 
point  where  the  first  error  was  committed,  and  proceeded 
with,  as  in  other  cases,  to  final  judgment.* 

§  175.  After  a  mandate  reversing  a  judgment  for  the 
plaintiff,  the  defendants  must  take  notice  of  the  situation 
of  the  case,  and  must  make  their  defence  if  they  have 
any;  if  they  make  none,  the  plaintiff  may  discontinue  as 
to  the  defendants  not  served,  and  take  judgment  by  default 
ascainst  the  others.^ 

§  176.  "Wliere  no  one  appeared  for  the  plaintiff  in  error, 
the  counsel  for  the  defendant  in  error  was  required  to 
state  the  nature  of  the  case,  and  the  judgment  of  the  court 
below  was  then  afiirmed,  with  costs.'* 

§  177.  On  affirmance  of  the  judgment,  where  such  judg- 
ment has  been  superseded  by  bond,  the  judgment  below  is 
merged  in  the  judgment  of  affirmance.^  But,  in  general, 
where  a  judgment  is  afiirmed  on  writ  of  error,  the  rights 
of  the  parties  stand  as  if  no  writ  of  error  had  been  sued 
out.^ 

§  178.  Where  the  writ  of  error  is  stricken  from  the 
docket,  on  account  of  a  division  of  opinion  in  the  court 
above,  the  court  below  may  enter  an  affirmance.^ 

'  Garvin    v.    Wells,    8     Clarke  ^  Jones  v.  Cannock,  18  Eng.  L. 

(Iowa),  280.  anclEq.  81. 

2  Commissioners,  &c.  ■».  Carey,  1  s  Wiswell  v.  IMuuroe,  4  Ala.  9. 

Ohio,  4G'3.      Sec  Cox  v.  Henry,  30  «  Shore  v.  Jones,  1  Brock.  285. 

Penn.  44.").  '  Styles  v.  Stale,  28  Geo.  388. 

•>  Uuderhill  v.  Thomas,  24  Tex. 
283. 


678  THE   LAAV    OF   NEW    TRIALS.  [CH.  XIX. 

§  179.  Upon  a  writ  of  error,  tlie  court  found  that  there 
was  an  error  in  taxation  of  costs  to  the  amount  of  eight 
dollars  and  twenty-three  cents,  and  ordered  the  judgment 
to  he  set  aside,  and  a  new  judgment  entered  for  the  correct 
amount,  the  plaintiff  in  error  to  have  a  writ  of  restitution 
for  the  excessive  costs  paid  by  him,  with  interest.^ 

§  180.  Where  the  court  irregularly  dismissed  an  appeal ; 
on  error,  the  order  was  reversed,  but  a  new  one  entered, 
dismissing  the  appeal,  and  remanding  to  the  original 
court." 

§  181.  On  appeal,  a  judgment  was  held  to  have  been 
beyond  the  power  of  the  court,  and  was  therefore  set  aside. 
Held,  thereafter,  on  error,  that,  the  alleged  judgment 
having  been  declared  on  the  appeal  to  be  void,  the  writ 
of  error  must  be  dismissed,  with  costs  to  the  defendant  in 
error.^ 

§  182.  Where  a  judgment  was  rendered  against  the  de- 
fendant in  error,  for  his  non-appearance ;  on  motion,  the 
judgment  was  set  aside,  and  the  court  held,  that  they  were 
bound  to  look  into  the  record,  and  see  whether  there  was 
an  error  sufficient  to  reverse  the  judgment ;  but  the  trial 
should  be  ex  farted 

§  183.  Wliere  a  party  seeks  the  enforcement  of  so 
rigorous  a  rule  as  the  affirmance  of  a  judgment  without 
reference  to  the  merits,  his  application  ought  certainly  to 
receive  no  favor  beyond  what  the  law  peremptorily  de- 
mands. The  transcript  was  filed  by  a  defendant  in  error, 
who  moved  for  an  affirmance  of  the  judgment,  without 
rea;ard  to  the  merits.      There  was  no  indorsement  on  the 


-=>' 


•  George  «.  Starrctt,  40  N.  H.        3  jiawke  w.  Deuel,  2  Min.  58. 
135.  ^  MiircU  «.  Howell,  1  Mis.  138. 

2  Eaton,  &c.  v.  Varnum,  10  Ohio 
(N.  S.)  022. 


en.  XIX.]  WRIT   OF   ERROR.  679 

transcript  such  as  the  statute  required.  The  motion  was 
refused,  the  writ  of  error  dismissed,  and  the  defendant 
was  ordered  to  pay  costs. ^ 

§  184.  Upon  reversal  of  a  judgment,  the  plaintiff  in  error 
is  to  be  restored  to  all  things  which  he  has  lost  by  the 
judgment.  But  the  proceedings  of  the  court  below  afford  a 
justification  for  all  done  under  them  before  the  reversal.^ 

§  185.  In  ]S"ew  Hampshire,  a  writ  of  restitution,  after 
a  reversal  for  error,  issues  only  for  the  amount  for  which 
the  goods  taken  on  execution  were  sold ;  not  for  the  value 
of  them.  And  in  such  case  trespass  does  not  lie  to  recover 
the  difference  between  the  value  of  the  goods  and  the 
amount  of  the  sale.^ 

§  186.  In  Massachusetts,  on  reversal  of  a  judgment 
which  has  been  satisfied  by  a  levy  and  entry  upon  land, 
the  court  will  not  order  restitution,  but  will  leave  the 
plaintiff  in  error  to  his  writ  of  entry.^ 

§  187.  Upon  reversal  of  a  judgment,  a  writ  of  restitution 
is  to  be  awarded  for  the  amount  received  by  the  defendant 
in  error,  in  satisfaction  of  the  judgment,  and  officers' 
fees,  with  interest.  There  can  be  no  inquiry  into  the 
damages  sustained  by  the  levy  of  execution  upon  the 
property,  and  a  sale  at  a  sacrifice.^ 

§  188.  Questions  have  arisen  respecting  the  right  to, 
and  effect  of,  successive  writs  of  error  upon  the  same 
judgment. 

§  189.  After  a  cause  has  been  brought  to  the  Supreme 
Court  of  the  United  States,  and  decided,  and  a  mandate 

'  Harris  v.  Williams,  4  Tex.  339.  s  Gay   v.  Smith,  30  N.  H.  435. 

2  Gaj'  V.  Smith,  38  N.  II.  171.  See  AVilliams  d.  Coward,  1  Graut, 

^  Ibid.  21. 
»  Ilorton  V.  Wilde,  8  Gray,  425. 


680  THE    LA"W    OF    NEW    TRIALS.  [CH.  XIX. 

issued  to  tlic  court  boloAv,  if  a  second  writ  of  error  is  sued 
out,  it  Lriiio-s  up  for  revision  nothing  but  the  proceedings 
subsequent  to  the  mandate.^ 

§  190.  A  common-law  case  having  been  dismissed  at  the 
last  term  for  want  of  jurisdiction,  it  appearing  that  there 
was  no  final  judgment  in  the  court  below;  a  motion  was 
made  to  annul  the  order  of  dismissal  and  reinstate  the  case 
upon  the  docket,  and  supported  by  an  affidavit,  that  the 
judgment  below  was  a  final  one,  and  that  the  first  tran- 
script was  erroneous,  and  by  the  production  of  a  correct 
record.  Held,  the  motion  could  not  be  granted;  the  proper 
course  being  to  sue  out  another  writ  of  error;  thouo-h  it 
might  be  otherwise  in  the  admiralty  side  of  the  court.^ 

§  IQOa.  A  second  writ  of  error  is  allowable  in  the  same 
cause,  only  when  the  first  was  dismissed  for  a  defect  over 
which  the  party  had  no  control.  But  if  the  transcript  of 
the  record  in  a  writ  of  error  omits  the  final  judgment  of 
the  court  below,  as  this  might  have  been  supplied  by 
certio7rm,  dismissal  for  this  cause  is  final.^ 

§  101.  In  Pennsylvania,  a  plaintifi'  in  error  may  have  a 
second  writ  of  error,  after  a  noil  pros,  of  the  first,  but  it 
will  not  be  a  supersedeas  to  an  execution.^ 

§  192.  In  Virginia,  where  the  general  court  have  upon 
writ  of  error  reversed  a  judgment  and  directed  a  new 
trial;  that  judgment  is  conclusive,  and  neither  the  court 
below,  nor  the  general  court  on  a  second  writ  of  error, 
can  inquire  into  its  correctness.^ 

§  193.  In  New  Jersey,  where  a  plaintifi"  has  removed 
his  cause  from  the  Circuit,  by  writ  of  error,  to  the  Su- 

'  Roberts  v.  Cooper,   20    How.  ^  Sherman  v.  Lovejoy,  30  Miss. 

4G7.  105. 

2  Rice    V.    Minnesota,    «fcc.,    31  ^  Power  v.  Frick,  2  Grant,  306. 

How.  82.  5  Marshall's  Case,  5  Gratt.  693. 


en.  XIX.]  WRIT   OF   ERROR.  681 

premo  Court,  he  cannot,  after  tliat  writ  has  heen  dismissed 
for  want  of  prosecution,  remove  it  by  writ  of  error  to  the 
Court  of  Errors.^ 

§  194.  In  :Massachusetts,  an  affirmance  of  a  judgment, 
on  a  writ  of  error  to  which  in  nullo  est  erratum  is  pleaded, 
is  a  bar  to  a  second  writ  of  error  to  reverse  the  same 
judgment  for  any  error  apparent  on  tlie  record,  where  it 
was  brought  before  the  court  on  tlie  first  writ.j^ 

§  195.  In  Alabama,  a  certificate,  which  omits  to  show 
the  time  at  which  the  writ  of  error  issued,  and  the  term 
to  which  it  is  returnable,  is  insufficient  to  authorize  an 
affirmance  of  the  judgment.  If  a  writ  of  eiTor  is  not 
returned  to  the  term  to  which  it  issued,  but  is  abandoned, 
by  afterwards  suing  out  a  new  one,  returnable  to  a  sub- 
sequent term;  it  becomes  a  nullity,  and  a  certificate 
issued  on  it,  pending  the  second  writ,  will  not  authorize 
an  affirmance  of  the  judgment.^ 

§  196.  The  subject  of  writs  of  error  in  criminal  cases  is 
perhaps  more  generally  governed  by  express  statutes  than 
the  same  remedy  in  civil  proceedings.  Only  a  brief  notice 
of  it,  therefore,  is  practicable  or  desirable. 

§  196a.  TVe  have  in  ajnother  connection  considered  the 
question,  whether  a  neio  trial,  technically  so  called,  can  be 
granted  after  an  acquittal.  A  similar  question  has  some- 
times arisen  in  reference  to  a  writ  of  error.  In  a  late  case 
in  England,  being  the  somewhat  celebrated  case — a  prose- 
cution for  bigamy — involving  the  validity  of  a  marriage 
with  the  sister  of  a  deceased  wife,  a  writ  of  error  was 
brought  at  the  suit  of  the  crown  to  reverse  a  judgment  in 
favor  of  the  defendant.     IsTo  question  was  raised,  whether 


'  Garr  v.  Panlmier,  1  N.  J.  681.  3  Tardy  v.  Muriy,  17  Ala.  oSo. 

2  r>n()tli  V.  The  Commouwcalth, 
7  Met.  2So. 


682  THE   LAW    OF   NEW    THIALS.  [CH.  XIX. 

the  crown  could  have  a  writ  of  error,  and  nothing  was 
said  on  tlic  subject  at  the  bar  or  by  the  court.  The  judg- 
ment of  the  court  below  was  sustained  on  other  grounds, 
and  therefore  this  point  became  immaterial.^ 

§  197.  The  same  question  arose  a  few  years  since  in 
Massachusetts,  and  the  court  in  an  elaborate  judgment 
decided  that  the  writ  of  error  could  not  be  maintained. 
Some  portions  of  Mr.  Chief  Justice  Shaw's  opinion  will 
show  the  grounds  upon  which  it  was  predicated,  and 
which  are  probably  alike  applicable  in  other  States  :  "  In 
favor  of  sustaining  the  writ,  it  seems  to  be  necessary,  in 
every  well-ordered  government,  that  the  decisions  and  ad- 
judications in  matters  of  law,  of  all  courts  and  bodies 
vested  with  judicial  powders,  within  the  jurisdiction  of 
any  one  State  or  government,  should  be  brought,  in  some 
form,  to  the  final  adjudication  of  a  tribunal,  having  a 
common  jurisdiction  over  the  whole  of  such  State. — The 
learned  counsel  for  the  government  relied  strongly  on  the 
large  powers  vested  in  this  court  by  the  provisions  of  the 
Rev.  Sts.,  c.  81. — These  powers  are  certainly  very  large 
and  unlimited,  and  give  the  court  superintending  juris- 
diction over  all  judicial  proceedings,  civil  and  criminal,  at 
law  and  in  equity,  between  party  and  party,  and  between 
the  commonwealth  and  any  of  the  subjects  thereof.  These 
considerations  would  be  very  strong — if  they  were  wholly 
unqualified,  and  stood  alone.  But  there  are  some  qualifi- 
cations, though  briefly  expressed,  annexed  to  them ;  but, 
what  is  more  important,  they  are  to  be  taken  in  connec- 
tion with  various  other  legislative  provisions,  directing 
when,  how,  and  in  what  cases,  appeals  may  be  taken  and 
prosecuted,  exceptions  filed,  writs  of  error,  habeas  corpus^ 
certiorari^  mandanms^  and  the  like,  sued  out,  as  of  right, 
or  granted  on  application,  thus,  in  eftect  and  by  implica- 
tion, limiting  the  generality  of  the  provisions  conferring 

»  Reg.  v.  Chadwick,  11  Ad.  &  Ell.  N.  205. 


en.  XIX.]  WRIT  OF  ERROR.  683 

these  powers. — It  is  difficult  perceive  why  the  argument 
drawn  from  a  consideration  of  the  general  superintending 
powers  of  the  court,  in  support  of  a  writ  of  error  for  the 
commonwealth,  would  not  apply  equally  in  favor  of  ap- 
peals. But  we  believe  it  has  never  been  supposed,  that 
an  appeal  would  lie  for  any  party  in  a  criminal  case, 
except  where  it  had  been  expressly  given  by  statute;  nor 
was  it  ever  claimed,  that  the  commonwealth  could  appeal 
from  a  judgment  of  acquittal. — Another  important  ques- 
tion is,  whether  in  any  case,  in  a  criminal  prosecution,  the 
commonwealth  can  have  a  bill  of  exceptions.  Without 
this,  there  would  be  no  mode  in  which,  even  by  the  aid 
of  a  writ  of  error,  the  material  questions  of  law,  raised 
and  decided,  could  be  brought  before  this  court,  because 
they  would  not  appear  upon  the  record. — No  bill  of  ex- 
ceptions can  be  claimed  for  the  commonwealth.  This 
consideration  has  a  tendency  to  show,  that  the  intention 
of  the  legislature,  in  limiting  the  right  to  file  exceptions 
to  the  party  accused,  was  also  to  limit  in  like  manner  the 
rio-ht  to  brino-  a  writ  of  error. "^ 

§  198.  A  writ  of  error  does  not  lie,  in  a  criminal  case, 
in  behalf  of  the  United  States.^  ISTor,  independently  of 
statute,  according  to  the  latest  decisions,  in  IsTew  York.^ 
In  that  State,  under  c.  82,  of  the  laws  of  1852,  a  writ  of 
error  in  favor  of  the  people  lies  only  when  there  has  been 
judgment  for  the  defendant  upon  an  indictment,  and  not 
where  there  has  been  a  conviction  and  certiorari  with  stay 
of  judgment  in  the  court  below.^ 

§  199.  The  same  rule  is  adopted  in  Iowa,*  and  in  Geor- 
gia;^   though  a  writ  of  error,  to   the  judgment  of    an 

'  Com.   V.  Cummiugs,  8   Cush.  "  People  v.  NcstlQ,  19  N.  Y.  (5 

212-7.  Smith)  583. 

2  U.  S.  7>.  More,  3  Crancli,  174;  «  State  v.  Johnson,  2  Chirko,  549. 
overruling  U.S.  ■«.  Simnis,  1  ib.  6  state  of  Georgia  y.  Jones,  7  Geo. 
251.  422. 

3  The     People     v.    Corning,     2 
Comst.  1. 


684  TUE   LAW    OF   NEW    TRIALS.  [CH.  XL\. 

inferior  court  on  a   recognizance,  may  be  prosecuted  at 
the  instance  of  the  State.^ 

§  200.  In  Maryland,  it  is  held  that  a  writ  of  error  lies 
for  the  State.^ 

§  201.  In  Ohio,  after  a  verdict  for  the  State  upon  a  plea 
of  not  guilty  in  an  indictment  for  murder,  a  motion  for  a 
writ  of  error,  because  the  record  did  not  show  that  the 
grand  jurors  were  all  legally  qualified,  cannot  be  sup- 
ported.2 

§  202.  In  criminal  cases,  the  Supreme  Court  of  Penn- 
sylvania has  jurisdiction  of  those  errors  only  which  appear 
on  the  face  of  the  record.-* 

§  203.  It  is  not  ground  of  error  that,  on  one  of  two 
counts,  in  an  indictment  charging  the  same  offence,  there 
was  an  acquital,  and  on  the  other  a  conviction.^ 

§  204.  Where  two  are  convicted  on  an  indictment  for 
larceny,  and  are  severally  sentenced  thereon  to  longer  terms 
of  imprisonment  than  are  warranted  by  law ;  they  may 
join  in  a  writ  of  error  to  reverse  the  judgment.^ 

§  205.  In  Arkansas,  the  grand  jury  asked  instruction 
of  the  court  upon  a  point  of  law,  and  the  attorney  for  the 
State  excepted  to  the  instructions,  and  brought  error. 
Held,  the  record  presented  no  case  for  the  decision  of  the 
Supreme  Court,  but  simply  an  abstract  point  of  law.^  In 
the  Supreme  Court  of  the  United  States,  where  the 
attorney-general  suggests  that   he  wishes  the  record  to 


'  State  V.  Lockhart,  24  Goo.  430.  »  Vanpool?). The  Commonwealth, 

2  The  State  v.  Buchanan,  5  Har.  13  Penn.  391. 

&  .1.  317.  5  IMills  V.  Com.,  13  Penn.  G34. 

3  Parks  V.  State,  4  Ohio  (N.  S.),  ^  Sumnor  v.  Com.,  3  Cush.  521. 
234.  ^  The  State  v.  Biscoe,  7  Eug.  GS3. 


en.  XIX.]  WRIT    OF    ERROR.  085 

present  other  questions  which  he  deems  necessary  for  the 
understanding  of  the  case,  and  thereupon  moves  for  a 
discontinuance;  the  court  will  grant  it,  without  further 
investigation.^ 

•  United  States  v.  Minnesota,  &c.,  18  How.  241. 


686 


THE    LAW    OF   NEW    TRIALS. 


[CH.  XX. 


CHAPTER  XX. 


CERTIORARI. 


1.  Definition,  nature,  and  pur- 
pose. 

6.  What  is  to  be  reviewed. 

7.  Distinction    between     error 
and  certiorari. 

8.  Lies  only  upon  pending  pro- 
ceedings. 

9.  Not  a  writ  of  right — discre- 
tionary. 

12.  The  proceeding  must  be  a 
judicial  one. 

13.  Relates  to  the  legality  and 
vegxilarity  of  the  proceedings  re- 
viewed. 


14.  Supersedeas. 

15.  Jurisdiction    of    the    court 
below. 

IG.  Questions  of  law  and  of  fact. 
19.  Return  to  the  writ. 
23.  Docs  not  lie  where  there  are 
other  remedies ;  appeal. 
25.  In  criminal  cases. 
2G.  Parties. 

2Ga.  To  justices  of  the  peace. 
32.  Form  of  petition  and  affidavit. 
43.  Miscellaneous. 


§  1.  Under  the  general  term  writ  of  error  is  usually  in- 
cluded the  writ  of  certiorari;  of  which  the  foUowiug 
account  is  given  by  an  approved  English  writer.(«) 

§  2.  The  mode  of  obtaining  an  exemplification  of  the 
record  of  another  court,  is  by  certiorari  and  mittimus.  The 
certiorari  is  an  original  writ,  issuing  sometimes  out  of 
chancery,  and  sometimes  out  of  the  king's  bench,  and 
lieth  where  the  king  would  be  certified  of  any  record 
which  is  in  the  treasury,  or  in  the  common  pleas,  or  in 
any  court  of  record,  or  before  the  sherifi"  and  coroners,  or 
of  a  record  before  commissioners  or  before  the  escheator ; 
in  these  cases,  the  king  may  send  that  -writ  to  any  of  the 


(a)  The  same  remark  is  to  be  made  with  reference  to  this  writ  which 
has  already  been  made  respecting  the  ^Y^it  of  error ;  that,  in  the  United 
States,  the  statutory  law  has  in  many  instances  changed  its  common-law 
character  and  application.  In  Georgia,  the  superior  courts  have  express 
power  under  the  constitution,  and  independent  of  any  legislation,  to 
correct  errors  in  inferior  judicatories  by  certiorari.  Smith  v.  Joiner,  27 
Geo.  65. 


CII.  XX.]  CERTIORARI.  687 

said  courts  or  officers  to  certify  sucli  record  before  liiin,  in 
banco,  or  in  chancery,  or  before  other  justices,  where  the 
king  pleaseth  to  have  the  same  certified ;  and  the  courts 
or  officers,  to  whom  the  certiorari  is  directed,  ought  to 
send  the  same  record,  according  to  the  tenor  of  the  writ, 
and  as  tlie  writ  doth  command  them  ;  and  if  they  fail  so 
to  do,  then  an  alias  shall  be  awarded,  and  afterwards  a 
'plurics,  with  a  clause  of  vel  causani  nobis  signijices,  and 
after  that  an  attachment,  if  a  good  cause  be  not  returned 
upon  the  2)luries,  wherefore  they  do  not  send  the  record. 
On  this  writ,  where  the  superior  court  doth  not  send  for  the 
record  of  an  inferior  one,  to  see  whether  they  keep  within 
the  limits  of  their  jurisdiction,  but  merely,  on  nid  tid 
record.,  to  know  whether  there  be  such  a  record  or  not,  it 
is  sufficient  to  certify  the  tenor  of  the  record;  and  in 
chancery  they  never  certify  anything  more,  for  that  court 
does  not  send  for  the  record  of  the  inferior  one,  to  bound 
their  jurisdiction,  but  to  send  it  to  other  courts  by  mittimus. 

§  3.  If  a  recovery  in  an  inferior  court  be  pleaded,  or 
declared  on,  in  a  superior  one,  and  denied,  the  certiorari 
may  in  general  issue  either  out  of  the  superior  court,  or 
the  chancery.  If  it  issue  out  of  the  former,  the  record 
itself  must  be  certified  ;  if  out  of  the  latter,  only  the  tenor. 
But,  if  such  recovery  be  pleaded,  or  declared  on,  under  the 
seal  of  the  inferior  court,  the  certiorari  must  issue  out  of 
chancery.  And  so,  -where  nul  tiel  record  is  pleaded,  to  the 
record  of  a  superior  court,  or  court  of  concurrent  juris- 
diction, there  is  no  way  to  have  it  but  by  certiorari  and 
mittimus  out  of  chancery ;  for  one  court  is  not  bounded 
by  the  other  in  point  of  jurisdiction,  and  in  their  judicial 
capacities  they  cannot  command  each  other;  but  the 
chancery,  which  is  the  centre  of  all  the  courts,  may,  by 
its  original  constitution,  send  for  the  records  of  any  of 
them,  and  from  thence  the  subjects  may  receive  copies,  or 
exemplications  under  the  Great  Seal.^ 

2  Tidd's  Practice,  G75. 


688  THE   LAW    OF   NEW    TRIALS.  [CU.  XX. 

§  4.  Another  description  of  the  same  writ,  more  nearly 
conformable  to  the  American  practice,  is  the  followino-: — 

§  5.  '■'■  Certiorari  is  a  writ  issued  from  a  superior  court 
directed  to  one  of  inferior  jurisdiction,  commanding  the 
latter  to  certify  and  return  to  the  former  the  record  in  the 
particular  case.  When  any  error  has  occurred  in  the  pro- 
ceedings of  the  court  below,  different  from  the  course  of 
the  common  law,  in  any  stage  of  the  cause,  in  either  civil 
or  criminal  cases,  the  writ  of  certiorari  is  the  only  remedy 
to  correct  such  error,  unless  some  other  statutory  remedy 
has  been  given.  Sometimes  the  writ  of  certiorari  is  used 
as  auxiliary  process,  in  order  to  obtain  a  full  return  to 
some  other  process.  When,  for  example,  the  record  of  an 
inferior  court  is  brought  before  a  superior  court  by  appeal, 
writ  of  error,  or  other  lawful  mode,  and  there  is  a  mani- 
fest defect,  or  a  suggestion  of  diminution,  a  certiorari  is 
awarded  requiring  a  perfect  transcript  and  all  papers."^ 

§  6.  Certiorari  brings  up,  as  part  of  the  record,  what- 
ever entered  into  or  was  necessarily  passed  upon  in  the 
decision  of  the  question  to  be  reviewed.^ 

§  7.  Certiorari  is  the  appropriate  writ  for  the  removal 
of  a  cause  before  judgment  (see  §  15),  and  the  writ  of  error 
aftcr.^     The  former  requires  no  assignment  of  errors." 

§  8.  Certiorari  lies,  only  to  remove  proceedings  which 
remain  before  the  inferior  tribunal.^  Thus  it  cannot  be 
maintained  upon  a  return  signed  by  one  juryman  several 
months  after  the  separation  of  the  jury."     I^or  to  review 


'  Bouv.  L.  D. ;  Davis  v.  Randall,  '  Com.  ■».  Simpson,  2  Grant,  438. 

20  111.  248  ;  Harrison  v.  Cliipp,  25  *  Stokes  v.  Jacobs,  10  Mich.  290. 

ib.  57.")  ;  Appeal,  57  Penn.  452.  5  fi^e  People,  &c.  «.  The  Com- 

2  Magee  v.  Cutter,  43  Barb.  239.  missiouers,  &c.,  30  N.  Y.  (3  Tiffa.), 

See  Koss  v.  Ellsworth,  49  Maine,  72. 

417.  6  Ibid. 


CII.  XX.]  CERTIORARI.  689 

an  assessment,  after  the  roll  has  been  delivered  hy  tlie 
commissioners  to  the  board  of  supervisors,  and  the  tax 
collected.^ 

§  9.  Certiorari  is  not  a  lorit  of  right.  Hence  it  does  not 
lie  for  mere  technical  errors  or  inaccuracies,  where  sub- 
stantial justice  is  done.^  "The  petition  for  this  writ  is 
addressed  to  the  judicial  discretion  of  the  court,  and  the 
writ  will  not  be  granted  if  substantial  justice  has  been 
done,  though  the  record  may  show  the  proceedings  to  have 
been  defective  and  informal. "^ 

§  10.  The  discretionary  character  of  the  writ  of  certio- 
rari is  not  taken  away  by  a  statutory  provision  requiring 
it  to  be  issued  within  two  years,  which  is  only  a  limita- 
tion ;  nor  by  the  provision  for  its  allowance  out  of  court, 
which  only  does  away  with  the  necessity  for  a  special 
application  during  a  session  of  court.^ 

§  11.  More  especially  in  cases  of  public  interest  a  certio- 
rari is  matter  of  discretion,  and  after  long  delay  will  not 
be  granted.'^  So,  at  the  hearing,  the  court  may  dismiss 
the  writ,  as  improvidently  granted,  or  may  refuse  the 
relief  asked.^  And  an  applicant  for  certiorari,  who  al- 
leges that  he  was  misled  by  the  opposite  party,  must  show 
how  he  was  misled,  and  that  he  has  been  diligent  in  ascer- 
taining and  asserting  his  rights.^ 

§  12.  As  already  explained,  certiorari  is  a  process  to 
bring  up  for  review  the  record  of  an  inferior  court,  or  a 
tribunal  Qx.QV(i\s\ng  judicial  functions.^    Acts  simply  minis- 

•  The  People,  &c.  v.  The  Metro-  ^  Por  Thomas,  J.      Thorre   v. 

politan,  &c.,  43  Barb.  494.  County,  &c.,  9  Gray,  .')8. 

2  Ewiiii,'  V.  Thompson,  43  Pcnn.  "  Lautis,  9  Mich.  324. 

Inhts.  kc.  V.  Co.,  A:c.,  5  Al-  ^  state  v.  Hudson,  5  Dutch.  115. 


6i:i 


len,  13;  Granville  v.  Hampden,  97  ^  Ibid.  ^  ,   ^io 

Mass.  193  ;  March  v.  Thomas,  63  '  Davis  r.  Randall,  26  111.  34o 

N.  C.  349.  ^  43  Barb.  233. 

44 


690  THE   LAW    OF   NEW    TRIALS.  [CH.  XX. 

terial  in  their  character  cannot  be  thus  reviewed;  but  acts 
of  a  judicial  nature,  whether  those  of  a  court,  or  of  a 
board  of  municipal  officers,  are  subject  to  review  in  this 
form.^  Thus  it  does  not  lie,  in  the  case  of  a  board  of 
supervisors,  passing  resolutions  to  provide  for  the  raising 
of  money  upon  the  credit  and  for  the  use  of  their  county, 
or  of  a  town,  for  the  purpose  of  paying  bounties  to  volun- 
teers. Such  proceeding  is  legislative^  not  judicial.  So  with 
a  resolution  passed  at  a  town  meeting.''  So,  in  Georgia,  a 
justice  of  the  inferior  court,  acting  in  county  matters,  is 
not  a  court,  and  therefore  its  orders  cannot  be  brought  up 
upon  certiorari.^ 

§  13.  The  remedy  in  question  only  pertains  to  the 
legality  and  regularity  of  the  proceedings.  It  is  not  a 
remedy  for  injury  done  to  the  party  who  applies  for  it.'* 
And  the  object  of  the  writ  is  to  confine  inferior  tribunals 
within  their  jurisdiction,  not  to  correct  errors  in  the  exe- 
cution of  their  j)roper  powers.  Thus  refusal  of  a  justice 
to  receive  the  defendant's  plea,  after  submission  of  the  case 
by  the  plaintiff,  is  not  a  proper  subject  for  certiorari." 

§  14.  Certiorari  involves  a  supersedeas,  but  only  suspends 
the  power  of  the  court  below.^ 

§  15.  With  more  particular  reference  to  the  point  of 
jurisdiction  ;{a)  it  is  held  that  the  common-law  writ  of 

1  Robinson  v.  Supervisors,  IG  *  People  v.  Neamig,  27  N.  Y.  (13 
Cal.  208.  Smith)  306. 

2  The  People,  &c.  r.  The  Board,  ^  Tallmadge  v.  Potter,  12  Wis. 
&c.,  43  Barb.  232  ;  33  ib.  344.  317. 

3  Justice,  <fcc.  V.  Hunt,  29  Geo.  <=  Ewing  v.  Thompson,  43  Penn. 
155  372.     See  St.  Martin  f.  Desuoyer, 

1  Min.  41. 


(a)  In  England,  where  an  appeal  is  determined  at  quarter  sessions  by 
ma"-istrates,  some  of  whom  are  interested  in  the  matter,  the  proceeding 
is  null,  and  it  is  properly  quashed  on  certiorari.  Hopkins,  1  Ellis,  B.  & 
E.  100. 


CII.  XX.]  CERTIORARI.  601 

certiorari  was  for  the  puri»ose  of  Ijringiiig  the  record  of 
an  inferior  court  or  jurisdiction,  after  judgment  (see  §  7), 
before  a  higher  court,  to  examine  v:hether  Jurisdiction  ex- 
isted in  the  lower  court,  and  whether  its  proceedings  were 
regular.*  So  certiorari  is  the  proper  remedy  by  which  to 
determine,  whether  a  court  of  magistrates  and  freeholders 
has  jurisdiction  to  order  restitution  of  leased  premises  to 
the  landlord.-  So,  in  California,  review,  by  certiorari,  of 
the  action  of  the  board  of  supervisors,  in  granting  a  ferry 
license,  can  be  had  only  for  excess  or  want  of  jurisdiction.^ 

§  16.  It  is  undoubtedly  the  general  rule,  that,  on  cer- 
tiorari, the  court  will  not  review  the  finding  of  the  lower 
court  U})on  the  fads.*  The  of^ee  of  a  certiorari  is  to  review 
questions  of  law,  not  of  fact ;  and,  in  examining  into  evi- 
dence, the  appellate  court  does  not  determine  the  prepon- 
derance of  probabilities,  but  simply  whether  the  evidence 
will  justify  the  finding  as  a  legitimate  inference  from  the 
facts  proved,  whether  that  inference  would  or  would  not 
have  been  drawn  by  the  appellate  tribunal.*^ 

§  17.  But  the  court  above  will  inquire,  not  only  into  the 
jurisdiction  of  the  inferior  tribunal,  but  also  into  errors  of 
law  occurring  on  the  trial,  and  afi:ecting  the  merits  of  the 
case.  And  it  is  sometimes  held,  that,  where  facts  exist, 
which,  if  apparent,  would  have  ousted  the  inferior  juris- 
diction, the  appellate  tribunal  may  allow  them  to  be  set 
forth  in  the  affidavits  of  the  relator,  and  require  a  response. 
So,  that  the  rulings  at  law  upon  the  admission  and  exclu- 
sion of  evidence  should  be  reviewed.  That  questions  of 
law,  arising  either  upon  the  admission  of  evidence,  or  the 
other  rulings  in  the  proceedings,  must  always  have  a  bear- 
ing on  the  result,  and  the  appellate  court  cannot,  generally 

'  Chicago,  &c.  v.  Fell,  23  111.  333.        «  Brown  ii. Ramsay,  o  Dutcli.117; 
2  FoUiii  V.  Coogan,  13  Rich.  44.      De  Rochebrune  v.  Southcimcr,  12 
'  nenshaw    v.   Supervisors,    19    Min.  78;  States.  Hudson,  3  Vroom. 
Cal.  150.  305. 

5  9  Mich.  111. 


G92  THE    LAAV    OF   NEW   TRIALS.  [CII.  XX. 

at  least,  assume  that  any  of  tlietn  have  not  contributed 
to  it.' 

§  11a.  So,  upon  a  common-law  certiorari  for  the  removal 
of  summary  convictions  before  magistrates,  the  power  of 
review  is  not  contined  to  questions  affecting  either  the 
jurisdiction  of  the  magistrate  or  the  regularity  of  the 
proceedings,  but  extends  to  all  other  legal  questions;  and, 
unless  it  appears  upon  the  face  of  the  record  that  there 
was  evidence  sufficient  to  warrant  the  conviction,  it  will 
be  quashed.- 

§  176.  Generallj',  as  we  have  seen,  this  writ  brings  up 
only  questions  as  to  the  jurisdiction  and  power  of  the 
inferior  tribunal,  and  the  regularity  of  its  proceedings, 
and  not  as  to  the  correctness  of  the  decision  below  ujion 
the  merits.  But  its  decisions  upon  questions  of  fact, 
relating  to  its  jurisdiction  and  the  extent  of  its  powers, 
are  open  to  review.  And  the  qualification  is  sometimes 
added  to  the  general  rule,  that,  on  certiorari,  the  court 
will  not  look  into  facts,  unless  it  appears  that  gross  in- 
justice has  been  done.  And  where  the  objection  taken 
was  a  refusal  to  charge  that  a  prior  judgment  was  a  bar, 
and,  by  the  transcript  of  the  record,  it  appeared  that  the 
former  suit  was  still  pending,  although  this  was  disputed ; 
the  court  refused  to  interfere.^ 

§  18.  But,  as  the  liability  of  a  corporation  for  trespass 
would  depend  upon  a  fact,  as  to  the  orders  and  directions 
of  the  company  to  commit  or  not  commit  the  act  com- 
plained of;  certiorari  is  not  a  proper  remedy,  in  such 
case,  to  authorize  a  review  of  the  judgment  of  a  justice 
of  the  peace.* 

»  Jackson  v.  People,  9  ]\Iicli.  111.  36  N.  Y.  218  ;  Roddy  v.  Bacon,  3 

2  Mullins  V.  People,  34  N.  Y.  (10  Cold.   253  ;   People  v.  Board,   39 
Smith)  399.  N.  Y.  81. 

3  Pcoi)le    V.    Van    Alstyne,    32  *  Chicago,   &c.  v.  Fell,  22   111. 
Barb.  131;  Whitney  v.  Board,  &c.,  333. 

14  Cal.  479.     See  People  v.  Ferris, 


CII.  XX.]  CERTIORARI.  693 

§  19.  It  13  the  general  rule,  that  the  return  made  to  a 
writ  of  certiorari  is  couchisive  as  to  the  facts  stated  in 
\t.\a)  The  only  questions  upon  certiorari  are  those  raised 
by  the  record.^  The  court,  in  its  affirmance  or  reversal  of 
the  judgment,  cannot  regard  facts  set  up  only  in  the 
affidavit. 2 

§  20.  The  return,  in  a  criminal  case,  should  set  out  the 
evidence ;  and,  if  the  evidence  as  set  forth  be  not  sufficient 
to  justify  the  conviction  or  other  judicial  act  complained 
of,  it  will  be  quashed  on  certiorari — as,  upon  a  sunmiary 
conviction  before  a  magistrate*  So  where  the  jurisdiction 
of  a  subordinate  tribunal  depends  upon  the  facts  to  be 
proved  before  themselves,  and  such  facts  are  disputed ;  the 
evidence  should  be  returned  to  a  certiorari,  and  it  may  be 
examined  to  see  whether  the  fact  be  established.'  So  the 
return  by  a  justice  to  a  certiorari  should  not  be  confined 
to  the  averments  in  the  affidavit  of  the  party  suing  out 
the  writ,  but  should  be  a  complete  return  of  all  the  pro- 
ceedings and  rulings  at  the  trial."  But  where  commis- 
sioners, appointed  under  an  act  of  the  legislature,  returned 
to  a  certiorari  the  proceedings  resulting  in  their  appoint- 
ment, in  which  return  it  appeared  that  both  the  common 
council  and  the  Supreme  Court  had  determined  that  a 
sufficient  petition  of  a  majority  of  persons  (which  petition 
was  a  necessary  preliminary  to  the  appointment)  had  been 


'  Inhts.,  &c.  V.  Co.,  «fec.,  5  Allen,  ^  Gervais  ».  Powers,  1  Min.  45; 

13.     See  Hays  v.  Gorby,  3  Clarke,  Taylor  v.  Bissell,  ib.  225. 

203;  Blair  c.  Hamilton,' 32  Cal.  49;  ^  3Iullins    v.  People,  24    K   Y. 

Central  v.  Placer,  ib.  582;  Central  (10  Smith),  399;  Jackson  ». People, 

V.  Board,  34  ib.  352.  9  Mich.  111. 

2  People  V.  Wheeler,  21  N.  Y.  ^  People  v.  Lawrence,  36  Barb. 

(7  Smith)  82.  177. 

6  Gervais  v.  Powers,  1  Min.  45. 

(a)  "With  regard  to  the  application  itself,  it  is  held  that  a  petition  for 
a  certiorari  to  bring  up  proceedings  before  a  justice  must  stand  on  its 
own  merits ;  it  cannot  be  supported  or  defeated  by  affidavits.  Davis  i'. 
Randall,  26  111.  243. 


694  THE   LAW   OF   NEW    TRIALS.  [CH.  XX. 

presented;  such  determinations  were  held  conclusive  on 
the  point,  in  proceeding  by  certiorari  in  the  Supreme 
Court.i 


§  21.  The  qualification  is  sometimes  added  to  the  o'cneral 
rule,  that,  in  a  trial  under  a  writ  of  certiorari,  had  only 
upon  the  return  of  the  judge  below,  uncontradicted  state- 
ments in  his  return  will  be  taken  as  true.^  And,  in 
determining  a  question  oi  jurisdiction  in  the  lower  court, 
the  appellate  court  is  not  bound  by,  nor  restricted  to,  the 
facts  stated  in  the  record  Ijrought  u}i,  but  may  look  at 
the  evidence  bearing  on  those  matters.^ 

§  22.  But,  \\\)on  trial  of  a  cause  brought  up  ])y  certiorari 
to  a  justice  of  the  peace,  the  court  has  no  jurisdiction  of 
items  not  claimed  before  the  justice.^ 

§  23.  The  writ  of  certiorari  cannot  be  maintained,  till 
a  special  statutory  remedy  has  been  exhausted.^(^()  Thus, 
in  Illinois,  the  writ  may  issue  to  all  inferior  tribunals, 
where  they  proceed  illegally,  and  there  is  no  mode  of 
appeal,  or  other  way  of  reviewing  their  proceedings.^  So 
where  the  application  showed  on  its  face  that  the  party 
had  an  adequate  remedy  by  appeal,  the  writ  was  refused.^ 


'  People  V.  Lawrence,  3G  Barb.  <  Clark  n.  Snow,  24  Tex.  242. 

177.  5  The  People,  etc.  v.  Board,  &c., 

2  Schroder  v.   Crary,  11    Iowa,  37  Barb.  12G. 

555.  6  Ohicago,  &c.  v.  Whipple,    23 

i  Whitney  v.  Board,  &c.  13  Cal.  111.  105. 

479.  '  Clary  v.  Iloagiand,  13  Cal.  173. 


(a)  la  Vermont,  the  proceedings  of  the  county  court  upon  the  report 
of  commissioners,  appointed  by  a  justice  of  the  peace,  under  the  statute, 
to  appraise  the  damages  occasioned  to  a  lanel-owner  by  the  laying  out  of 
a  highway  by  selectmen,  cannot  be  revised  upon  exceptions,  but  only 
upon  certiorari.  Lyman  v.  Burlington,  32  Vt.  131 ;  Adams  v.  Newfane, 
8  Yt.  271. 


en.  XX.]  CERTIORARI.  695 

§  24.  If  a  justice  render  judgment  for  a  sum  beyond  his 
jurisdiction,  this  should  be  taken  advantage  of  by  appeah 
If,  being  ignorant  of  the  judgment,  the  party  has  allowed 
the  time  allowed  for  appeal  to  pass,  he  should  state  the 
fact  as  a  legal  excuse  for  not  appealing,  and  pray  for 
certiorari  for  a  new  trial,  and  not  for  the  purpose  of 
quashing  the  judgment  and  execution.  Such  prayer 
should  be  made  at  the  next  term  of  the  court. ^  And  a 
petition  for  certiorari  and  supersedeas  upon  a  judgment 
by  a  justice,  which  showed  the  judgment  to  be  unjust, 
and  gave  a  good  legal  reason  for  not  appealing;  was  held 
sufficient  and  timely.^  So  where  a  party,  in  the  county 
court,  prayed  an  appeal,  which  was  granted,  and  tendered 
his  sureties,  one  of  whom  was  prevented  from  signing  by 
the  fault  of  the  clerk,  and  was  compelled,  by  the  state  of 
the  weather  and  bad  health,  to  leave  the  court  without 
executing  the  bond ;  it  was  held  to  be  good  ground  for  a 
certiorari,  without  reference  to  the  merits.^ 

§  25.  In  the  last  chapter,  we  briefly  considered  the  sub- 
ject of  writs  of  error,  in  criminal  cases,  on  behalf  of  the 
State.  In  Pennsylvania,  certiorari  lies  for  the  correction  of 
errors  in  a  criminal  case,  in  behalf  of  the  commonwealth.* 

§  26.  Certiorari  must  be  brought  by  a  imrty  to  the 
former  proceedings.^ 

§  26a.  The  ordinary  mode  of  revising  the  judgments  of 
justices  of  the  'peace  is  by  appeal.  Certiorari,  however,  is 
often  resorted  to  for  the  same  purpose. 

§  27.  In  Texas,  if  a  justice  of  the  peace  grant  a  new 
trial  without  notice  to  the  adverse  party,  who  does  not 

'  Mason     v.    Westmoreland,    1  *  Com.  v.  Capp,  48  Penn.  53. 

Head,  555.  s  People,  itc.  v.  McCafiFrey,  43 

2  Nance  v.  Hicks,  1  Head,  G24.  Barb.  530.     See  Debeny  c.  Holly, 

3  McConnell «.  Caldwell,  G  Jones,  &c.,  35  Miss.  385. 
469. 


696  THE   LAW    OF   NEW    TRIALS.  [CII.  XX. 

appear  at  the  second  trial;  he  may  either  enjoin  the 
collection  of  the  judgment,  or  remove  the  cause  to  the 
District  Court  by  certiorari.^ 

§  28.  In  New  York,  the  only  method  of  reviewing  a 
decision  of  a  justice  of  the  peace  in  summary  proceedings 
is  by  a  certiorari  to  the  Supreme  Court.- 

§  29.  Certiorari  will  not  lie  to  a  justice  of  the  peace,  for 
any  matter  which  might  have  been  availed  of  at  the  trial 
before  the  justice.^ 

§  30.  In  Michigan,  in  proceedings  for  certiorari  to  a 
justice,  if  the  error  alleged  is  total  want  of  evidence  to 
prove  a  fact  necessary,  the  court  will  look  into  the  testi- 
mony, to  see  whether  or  not  there  was  such  evidence ;  if 
there  was,  without  weighing  or  examining  it,  the  court 
will  affirm  the  judgment;  if  not,  and  all  the  testimony 
appears  to  have  been  returned,  the  court  will  reverse  the 
judgment.'* 

§  31.  On  petition  for  certiorari  to  a  justice  of  the  peace, 
based  upon  the  ground  that  he  has  decided  unjustly  on  the 
merits,  all  the  evidence  which  was  before  him  should  be 
reported  with  an  allegation  that  it  has  been  done ;  but, 
where  this  was  evidently  the  intention  of  the  applicant, 
though  without  a  distinct  allegation  that  he  has  reported 
all  the  evidence,  if  the  evidence  reported  shows  the  in- 
justice of  the  judgment,  it  will  bo  reversed.'* 

§  32.  A  petition  for  certiorari  should  state  facts,  and 
not  the  opinions  or  conclusions  of  the  petitioner.^ 

'  Aycock  V.  "Williams,  18   Tox.  "•  Berry  v.  Lowe,  10  Mich.  9. 

392.  5  PhiHips  V.  Parr,  19  Tex.  91. 

2  Romaine  v.  Kiushimer,  3  Ililt.  '^  Peabody  v.  Bucntillo,  18  Tex. 
519.  313. 

3  Peabody  v.  Buentillo,  18  Tex. 
313. 


CII.  XX.]  CERTIORARI.  697 

§  33.  A  petition  for  certiorari,  averring  that,  about  six 
months  after  the  due-bill,  on  which  judgment  had  been 
recovered,  was  given,  a  settlement  had  been  eifected  be- 
tween the  parties,  and  receipts  in  full  exchanged,  should 
also  state  that  the  due-bill  was  included  in  such  settle- 
ment, and  that  the  receipt,  emln-acing  the  note  in  question, 
was  proved  at  the  trial.  It  should  also  allege  that  the 
facts  recited  as  proved  at  the  trial  were  all  the  facts 
proved.^ 

§  34.  Where  a  written  agreement  is  alleged  as  a  ground 
of  certiorari,  it  should  be  set  out,  that  the  court  may  judge 
of  its  eftect  and  construction,  and  of  its  conformity  with 
the  allegations.^ 

§  35.  The  admission  of  improper  evidence  before  a 
justice  of  the  peace  is  no  ground  for  certiorari,  where  it 
is  manifest,  from  the  allegations  in  the  petition,  that  the 
petitioner  was  not  thereby  injured.  A  petition  on  such 
ground  will  be  refused,  where  the  averments  do  not  show 
any  error  of  law  on  the  part  of  the  justice,  or  that  there 
might  not  have  been  satisfactory  and  sufficient  evidence 
in  support  of  the  judgment.^ 

§  35a.  On  a  petition  for  certiorari  to  a  justice  of  the 
peace,  there  must  be  such  fulness  and  certainty  in  the 
statement  of  the  facts,  as  to  show  what  the  case  really 
was,  and  that  some  material  error  or  injustice  has  been 
done  the  petitioner,  or  that  he  has  not  been  able  to  avail 
himself  of  a  legitimate  defence.  The  certainty  required 
is  a  reasonable  certainty.^ 

§  36.  A  petition  for  certiorari,  after  setting  forth  a  suit 
and  judgment  against  the  petitioner  in  a  justice's  court, 

•  Givens  B.  Blocker,  23  Tex.  ^33.        ■»  McKcnsie  v.  Pituer,  19  Tex, 
2  ^Martiu  v.  Nix,  19  Tex.  93.  135. 

=»  Ibid. 


698  THE   LAW    OF   NEW    TPvIALS.  [CH.  XX. 

for  a  cow  or  her  value,  stated  that  the  petitioner  "had 
been  in  peaceable  and  undisputed  possession  of  the  cow 
for  three  years,  or  over,  and  that  he  proved  the  same  to 
the  jury,  and  that  yet,  without  any  contradictory  or  ex- 
planatory evidence  by  the  plaintiff,  on  that  point,  the 
verdict  was  rendered  against  him;"  but  not  that  he 
relied  on  the  statute  of  limitations  at  the  trial.  Held, 
the  petition  was  insufficient.^ 

§  37.  The  absence  of  a  material  witness  at  the  trial  is  no 
ground  for  a  certiorari,  unless  it  appears  that  a  continuance 
was  demanded  for  that  cause.^ 

§  38.  A  petition  for  a  certiorari  must  not  be  based  upon 
mere  irregularities,  but  must  set  out  facts  showing  that 
the  petitioner  has  not  been  guilty  of  laches  in  pursuing 
his  remedy,  and  showing  also  the  merits  of  his  case,  and 
the  means  which  he  has  of  proving  it.^ 

§  39.  The  rejection  of  evidence  can  be  no  ground  for  a 
certiorari,  on  error,  unless  the  petition  sets  forth  the  facts 
expected  to  be  proved,  so  that  the  materiality  of  the  re- 
jected evidence  can  appear.* 

§  40.  "Where  the  petition  purports  to  report  the  evidence 
introduced  by  either  party  at  the  trial,  and  states  that  there 
is  no  proof  to  support  the  account  sued  on ;  it  is  sufficient, 
though  it  omit  to  state  that  there  was  no  other  evidence.' 

§  41.  The  affidavit  to  a  petition  for  certiorari  to  a 
justice's  court  may  be  made  by  the  agent  or  attorney  of 
the  petitioner.^ 


'  Robiusou  V.  Lakcy,    19   Tex.  ''  Ibid. 

139.  5  Rollison  V.  Hope,  18  Tex.  446. 

2  Ibid.  e.jkleAlpiniJ.  Fiucli,  18 Tex.  831. 
*  Bodman  v.  Harris,  20  Tex,  31. 


en.  XX.]  CERTIORARI.  699 

§  42.  An  affidavit  to  a  petition  for  certiorari,  "  that  the 
material  facts  as  set  fortli  in  the  foregoing  petition  arc 
true,  as  they  have  come  to  his  own  knowledge;  and  the 
information  of  others  concerning  the  facts,  which  has 
come  to  his  knowledge,  he  helieves  to  he  true  in  like 
manner;"  was  held  to  be  sufficient.* 

§  43.  AVhere  a  judge,  sitting  at  chambers,  has  erro- 
neously issued  and  directed  an  order  to  be  filed  as  of  a 
special  term;  a  certiorari  properly  issues  to  the  judge 
acting  as  an  officer  out  of  court,  and  not  to  the  court  of 
which  he  is  a  justice.^ 

§  44.  1^0  assignments  of  error  are  required  on  a  common- 
law  certiorari.^(a) 

•  RoUisou  y.  Hope,  18  Tex.  44fi.        »  Stokes  u.  Jacobs,  10  Mich.  290. 
2  People  V.  Kelly,  35  Barb.  444. 


(a)  As  to  certiorari  in  case  of  commitment  for  contempt,  see  People 
V.  New  York,  29  Barb.  622. 


700 


THE   LAAV   OP   NEW   TRIALS. 


FciI.  XXI. 


CHAPTER  XXI. 


APPEAL. 


1.  Definition. 

2.  In  the  United  States ;  statu- 
tory law. 

3.  A  statutory  remedy ;  the 
statutes  must  be  strictly  complied 
with  ;  time,  &c. 

G.  A  continuation  of  the  original 
suit ;  notice,  &c. 

7.  Question  as  to  right  of  appeal ; 
process  in  connection  therewith; 
constitutional  right. 

13.  Issue,  default,  &c. 

17.  Restricted  right  of  appeal ; 
title  to  land,  &c.  ;  construction  of 
statutes. 

20.  From  a  favorable  judgment, 
&c. 

22.  As  connected  with  other 
forms  of  rehearing  ;  error,  injunc- 
tion, review,  audita  querela,  &c. 

32.  Proceedings  must  he  judicial. 

33.  In  case  of  habeas  corpus. 

34.  Mandamus. 

35.  Contempt. 

36.  There  must  be  vl  judgment. 

37.  The  judgment  must  he  final, 
not    interlocutory ;     qualifications 


and  exceptions;  what  is  a  final 
judgment. 

4(3.  Discretionary  judgments. 

49.  Neglect  and  waiver  ;  objec- 
tions not  raised  in  the  court  below. 

Gl.  Questions  oi  jurisdiction. 

71.  Effect  of  an  appeal ;  suspends 
or  vacates  the  judgment ;  irregular 
or  void  appeal ;  neglect  to  enter  or 
prosecute, 

78.  Course  of  proceeding  in  the 
appellate  court ;  whole  case  re- 
opened ;  limitations  of  this  rule  ; 
pleadings,  evidence,  &c. 

89.  Dismissal  of  an  appeal. 

99.  Remanding  of  the  case. 

104.  Parties ;  persons  interested  ; 
joint  parties  ;  executors,  assignees, 
&c. 

118.  ^TO(>w7i<  of  judgment ;  juris- 
diction, etc. 

lol.  Return  of  papers  by  the 
court  below  ;  copies,  originals,  pa- 
pers filed,  &c. 

145.  Bond  and  recognizance. 

15G.  Payment  of  fees. 

170.  Successive  appeals. 


§  1.  Another  form  of  rehearing  is  appeal.  Appeal  is 
defined  as  "  the  act  by  which  a  party  submits  to  the  de- 
cision of  a  superior  court  a  cause  which  has  been  tried  in 
an  inferior  tribunal."^ 

§  2.  As  will  be  seen  (§  3),  appeal  is  a  purely  statutory 
mode  of  revision.  Ilcnce,  although  the  cases  upon  the 
subject  are  very  numerous,  a  large  proportion  of  them, 
being  founded  upon  the  construction  of  local  statutes,  are 


Bouv.  Law  Diet.     See  Leach  v.  Blakely,  34  Verm.  134. 


CH.  XXI.]  APPEAL.  'i'Ol 

themselves  of  local  application,  and  of  little  use    in  a 
general  treatise  like  the  present  work,  except  so  far  as  the 
enactments  of  ditforent  States  may  happen  to  be  identical 
or  similar,  and  the  construction  of  them  in  one  State  may 
therefore  be  of  authority,  by  way  of  analogy,  in  another. 
And  a  further  consideration,  adding  to  the  difficulty  of 
any  general  view  of  the  subject,  is,  that  the  term  itself — 
a^jKol — is  in  the  several  States  used   in  very  different 
senses.    It  has,  to  a  great   extent,  in  statutes  and  deci- 
sions, lost  its  distinctive  meaning,  and  is  either  the  generic 
term  for  all  forms  of  rehearing,  or  else  nearly  or  quite 
synonymous  with  error  or  new  trial.     As  distinguished 
from  revisions  of  questions  of  law,  and  peculiarly  api)licable 
to  those  of  fact,  appeal  now  finds  its  chief  application  in 
cases  carried  to  a  higher  court  from  courts  of  probate  or 
from  justices  of  the  i^eace,  both  of  them  tribunals  of  con- 
stant activity  and  great  practical  importance  in  the  United 
States.     The  former  class  of  cases  it  has  been  found  im- 
practicable to  notice.     The  settlement  of  the  estates  of 
deceased  persons  is  at  once  of  itself  a  most  extensive  and 
important  subject,  and  emphatically  and  almost  exclusively 
a  matter  of  statutory  regulation.     With  regard  to  trials 
before  justices  of  the  peace,  as  well  as  the  local  town  and 
city  courts  which  are  invested  with  their  limited  jurisdic- 
tion, both  of  which  tribunals  proceed  without  a  jury,  and 
whose  powers  it  is  now  the  uniform  tendency  of  the  statu- 
tory law  to  enlarge;   the  leading,  more  particularly  the 
most  recent  cases   are  summarily  referred  to,  so  far  as 
they  settle  or  illustrate  general  rules  and  principles.     The 
selection  is  a  diflicult  one,  and  in  the  nature  of  things 
cannot  wholly  exclude  decisions,  which  upon  examination 
would  be  found  to  turn  upon  some  express  statutory  pro- 
vision.    It  is  hoped  that  the  following  chapter,  though 
necessarily  concise,  may  be  found  a  useful  summary  of  the 
law  upon  a  subject  very  prolific  of  questions  and  decisions ; 
without  being  encumbered  with  the  details  which  are  in- 
appropriate to  a  general,  American  treatise. 


702  THE    LAW    OF   NEW    TRIALS.  [CII.  XXI. 

§  3.  Appeal,  as  already  stated,  is  wholly  a  statutory 
remedy,  not  being  known  to  the  common  law.(rt)  And  it 
does  not  exist  without  legislative  provision,  even  though 
expressly  recognized  in  the  constitution  of  the  State.^ 

§  4.  Such  being  the  nature  of  the  proceeding,  the  ap- 
pellant must  show  the  error  below,  or  the  judgment  must 
be  affirmed. (/j) 

§  5.  As  appeal  is  a  proceeding  unknown  to  the  common 
law,  it  cannot  be  extended  beyond  the  plain  and  obvious 
import  of  the  statutes  granting  it.^  And  similar  strict- 
ness is  adopted  as  to  tlrae.{c)  Thus,  in  !N'ew  York,  the 
time  wdtliin  which  an  appeal  may  be  taken,  under  the 
Code,  cannot  be  enlarged  by  the  court.^  So  the  marine 
court  has  no  power  to  extend  the  time,  w^ithin  which  an 
appeal  to  the  general  term  must  be  taken,  beyond  the 


'  Ohio,  iSrc.  «.  Lawrence,  &c,,  27        ^  street  «.  Francis,  3  Ham.  277  ; 
111.  50  ;  Hammond  «.  The  People,     14  Mass.  420  ;  7  Pick.  321. 
33  ib.  446.  »  Renouil  v.  Harris,  2  Sandf.  641. 


(a)  It  is  said  "  there  is  no  instance  at  common  law,  of  an  appellate 
court  retrying  a  case  by  jury,  except  where  the  former  judgment  has 
been  reversed  or  annulled.  The  practice  is  almost  peculiar  to  New 
England,  few  innovations  upon  the  common  law  having  been  made  in 
this  respect,  in  the  other  States  of  the  Union."  Howe's  Prac.  435. 
(The  practice  has  been  many  years  discontinued  in  Massachusetts,  and, 
except  with  reference  to  certain  classes  of  cases,  more  particularly 
those  relating  to  the  title  of  real  estate,  is  probably  for  the  most  part 
obsolete.) 

[h)  In  "Wisconsin  this  applies  now,  equally,  to  what  were  chancery  and 
to  what  were  common-law  proceedings  before  the  code,  lleald  v.  Wells, 
7  Wis.  149. 

(c)  See  Ladow  v.  Groom,  1  Denio,  429.  In  reference  to  time,  however, 
the  principle  of  nunc  pro  tunc  has  been  sometimes  applied.  Read  v. 
Dickinson,  2  Ashm.  224.  More  especially,  where  a  party  is  ready  and 
willing  to  comply  with  the  prerequisites  to  an  appeal,  but  would  be  de- 
prived of  his  right  by  the  wilful  or  accidental  omission  of  the  justice. 
Louderback  v.  Boyd,  1  Ashm.  380. 


en.  xxr.]  APPEAL.  703 

thirty  days  limited  by  statute.^  So,  in  England,  an  api>eal 
from  a  decision  of  a  judge  at  chambers  will  not  be  enter- 
tained after  the  lapse  of  a  term.^  So  the  time  within 
which  an  appeal  may  be  taken  is  not  suspended  by  a  mo- 
tion pending  to  set  aside  the  judgment.^  And,  in  Wis- 
consin, unless  the  plea  of  notice,  of  a  title  to  land,  and 
the  proceedings  thoreon,  strictly  conform  to  the  statute, 
the  Circuit  Court  has  no  jurisdiction,  and  must  dismiss 
the  appeal.  The  want  of  jurisdiction  is  not  cured  by  the 
appearance  of  both  parties.  The  i»arty  who  filed  the  plea 
and  carried  up  the  case  may  move  to  dismiss  it.  And  it 
must  clearly  appear  from  the  plea  or  notice,  that  the  title 
to  lands  will  come  in  question.  Thus,  in  an  action  for 
conversion,  a  plea  that  the  stack  of  grain  converted  was 
on  the  defendant's  land,  does  not  show  that  tlie  title  must 
necessarily  be  brought  in  question.* 

§  6.  Unlike  a  writ  of  error,  an  appeal  is  merely  a  con- 
tinuation of  the  original  suit.  It  is  held,  and  probably 
this  is  the  prevailing  practice,  that  an  apj)eal  must  be 
prayed  in  oi^en  court,  and  the  bond  ordered  to  be  given 
must  be  approved  by  the  court.  The  clerk  has  no  autho- 
rity, either  by  law,  or  by  direction  of  the  court,  to  ap- 
prove the  bond.^  And  it  is  the  general  rule,  that  either 
party  to  a  cause  is  bound  to  take  notice  of  an  appeal  taken 
at  any  proper  time,  without  service  of  any  process,  or  other 
notice,  ^(rt) 


'  De  la  Figaniere  v.  Jackson,  4  '  Renoul  v.  Harris,  2  Sandf.  041. 

E.  D.  Smith,  477.  *  Ycrbeckt;.Verbcck,  G  Wis.  15!). 

2  Craske  v.  Smith,  4  C.  B.  (N.  ^  Parker  v.  Willis,  27  Miss.  766. 

S.)  446.  ^  iSIalone  v.  Hardesty,  1  Cart.  79. 

{a)  This  peculiarity  of  appeal,  however,  as  distinguishing  it  from  other 
forms  of  revision,  has  doubtless  been  extensively  changed  l)y  statute.  In 
Iowa,  to  give  the  appellate  court  jurisdiction,  the  appellee  must  be 
served  with  notice  of  the  appeal.  Where  there  has  been  no  personal 
service  on  the  defendant  below,  the  appellee,  and  he  has  never  appeared, 
and  his  residence  is  unknown;  there  is  no  provision  for  notice  in  the 


704  THE   LAW   OF   NEW    TRIALS.  [CII.  XXI. 

§  7.  The  question,  whether  an  appeal  lies  in  any  given 
case,  is  a  question  for  the  appellate  court  alone.^  And 
when  the  right  depends  on  the  sufficiency  of  an  answer, 
it  is  not  necessary  to  wait,  before  appealing,  till  its  suffi- 
ciency be  determined  by  the  lower  court,  but  the  question 
may  be  left  for  the  Court  of  Appeals  to  decide.^ 

§  8.  Though  the  jurisdiction  of  a  court  is  strictly  ap- 
pellate, yet  it  may  exercise  such  jurisdiction  by  means  of 
the  process  of  mandamus  ;  and  also,  it  seems,  by  writs  of 
habeas  corpus^  supersedeas^  prohibition^  and  certiorari.^    And, 

'  Thompson  v.  McKim,  6  liar.  &  ^  The  People  v.  Turner,  1  Cal. 
J.  302.  143. 

2  Kcighlcr  «.  Savage,  &c.,  12  Md. 
883. 


code.  But  tliis  is  a  defect  in  the  organization  of  the  court,  which  the 
court  above,  under  the  code,  has  power  to  supply.  Therefore  it  was 
ordered,  in  such  a  case,  that  notice  be  given,  as  provided  in  the  code, 
?§  1725,  1826,  2498.  McClellan  v.  McClellan,  2  Clarke,  312.  In  Cali- 
fornia, unless  the  notice  be  filed  and  served,  and  the  undertaking  filed, 
within  the  required  time,  the  court  above  has  no  jurisdiction,  and  the 
appeal  must  be  dismissed.  The  service  must  be  made  between  the  filing 
of  the  notice,  and  the  filing  of  the  undertaking.  The  time  for  filing  the 
undertaking  cannot  be  abridged  by  the  neglect  of  the  appellant,  nor  can 
the  appellee  be  kept  watching  for  the  filing  of  the  original  notice  of  the 
appeal  by  premature  service  of  a  copy  thereof  on  him.  These  provisions 
of  the  code  are  intended  for  the  repose  of  parties,  and  must  be  strictly 
complied  with.  Hastings  v.  Halleck,  10  Cal.  31.  But  where  notice  of 
the  appeal  is  not  served  until  the  day  after  it  is  filed,  the  api>ellee  is  not 
injured  if  he  objects  to  the  undertaking  within  the  proper  time,  and 
therefore  cannot  have  the  appeal  dismissed  on  the  ground  that  the  notice 
was  not  served  on  the  day  of  filing.  Mokclumue,  &c.  v.  Woodbury,  10 
Cal.  185.  In  Indiana,  notice  of  an  appeal  to  the  resident  attorney  of  a 
non-resident  appellee  is  good.  Hurlbut  v.  Ilurlbut,  12  Ind.  346.  See 
Eobinson  v.  Hudson,  &c.,  1  Hilt.  144 ;  Cabre  v.  Sturges,  ib.  IGO ;  New 
York  V.  Green,  ib.  393 ;  Lee  v.  Schmidt,  ib.  537.  An  appeal  from  a 
justice  of  the  peace,  which  by  statute  may  be  taken  "  at  any  time  within 
twenty-four  hours  after  the  entry  of  the  judgment,  to  the  Court  of  Com- 
mon Pleas  then  next  to  be  hold  in  the  same  county,"  must  be  to  the  court 
held  next  after  the  entry  of  the  judgment,  although  before  the  taking 
of  the  appeal.     Mclniffe  v.  Wheelock,  1  Gray,  600. 


CII.  XXI.]  APPEAL.  705 

in  general,  in  cases  not  provided  for  hy  the  statute,  it  is 
within  the  legal  powers  of  the  court,  to  devise  and  au- 
thorize such  appellate  process  as  may  be  necessary  to 
enforce  its  own  jurisdiction.^ 

§  9.  A  statute,  giving  an  appeal  to  one  court,  to  persons 
aggrieved  by  the  doings  of  the  authorities  of  a  particular 
city,  as  to  damages  done  by  the  location  of  streets  an<I 
ways,  takes  away  the  appeal  given  by  the  general  law  to 
another  tribunal. ^ 

§  10.  Constitutional  questions  have  sometimes  arisen  in 
connection  with  the  right  of  appeal. 

§  11.  A  statute,  which  takes  away  the  right  to  a  future 
appeal  in  an  action  pending  and  undetermined  when  the 
statute  takes  eifect,  is  not  unconstitutional.^ 

§  12.  A  constitutional  right  of  trial  by  jury  is  suffi- 
ciently secured  by  the  right  of  appeal  to  a  court  before 
which  causes  ar6  thus  tried.^ 

§  13.  It  is  sometimes  expressly  provided,  that  an  appeal 
may  be  taken  whenever  an  issue  has  been  joined. («)     It  is 


'  Teas  V.  Robinson,  11  Tex.  774.        ^  Grover  v.  Coon,  1  Comst.  536. 
2  Bangor    v.    County,   &c.,    30        *  Sullivan  v.  Adams,   17  Pick. 
Maine,  270.  295. 

(o)  It  is  held,  that,  if  a  defendant  duly  served  suffer  a  default,  he 
thereby  conclusively  admits  the  facts  set  out  in  the  complaint,  and  can- 
not deny  them  on  an  appeal.  Therefore,  though  the  appeal  be  both  as 
to  law  and  fact,  he  is  not  entitled  to  a  trial  de  novo.  The  "  trial  anew" 
of  (California)  Practice  Act,  I  626,  means  only  a  retrial  of  such  issue  as 
was  actually  tried  below,  and,  if  issue  was  not  there  taken  on  the  facts, 
it  cannot  be  taken  on  the  appeal.  People  v.  County  Court,  10  Cal.  19 ; 
Funkcnstein  v.  Elgutter,  11  Cal.  328.  But,  under  the  Rev.  Sts.  of  Mas- 
sachusetts, c.  85,  I  13 — "any  party  aggrieved  ]>y  the  judgment  of  a  jus- 
tice of  the  peace"  may  appeal — an  appeal  lies  from  a  judgment  rendered 
45 


706  THE    LAW    OF   NEW    TRIALS.  [CII.  XXI. 

held,  that  the  issue  intended  by  statute  is  one  in  technical 
form,  or  at  least  a  coming  together  by  the  parties,  in  their 
2 .leadings,  to  a  point  to  be  tried  by  a  jury  as  matter  of 
fact,  or  by  the  court  as  matter  of  law.^  Thus  an  allegation 
by  a  plaintiif  in  a  trustee  process,  that  there  are  goods,  &c., 
deposited  with  A.,  and  A.'s  denial  in  his  answer  in  court, 
constitute  an  issue ;  and  therefore  A.  may  appeal  from  a 
judgment  charging  him  as  trustee,  though  the  principal 
defendant  was  defaulted.^ 

§  14,  Where  the  court  ordered  a  "  misentry"  to  be  en- 
tered, in  a  case  that  had  been  pending  several  terms, 
because  the  writ  was  lost,  an  appeal  from  this  order  was 
sustained.^ 

§  15.  An  appeal  was  held  not  to  lie  from  a  judgment  on 
a  case  stated  by  the  parties  for  the  opinion  of  the  court.'* 
But,  if  an  appeal  be  made  in  such  case,  and  entered,  the 
judgment  will  be  affirmed,  without  any  inquiry  as  to  its 
correctness.^ 

§  16.  Statutes  sometimes  restrict  the  right  of  appeal  to 
particular  subjects;  usually  those  connected  with  the  title 
to  real  estate. 

§  17.  Under  a  statute  allowing  appeal  where  the  judg- 
ment is  final,  and  relates  to  a  franchise  or  freehold,  the 

'  Purple  V.  Clark,  5  Pick.  206.  Wellington  v.  Stratton,  11  Mass. 

2  Ricbards  v.  Allen,  8  Pick.  405.  394. 

3  Gilbreth  v.  Brown,  15  INIass.  ^  11  Mass.  394;  Emerick  -v.  Arm- 
178.  strong,  1  Ham.  513.     See  Stewart 

4  Phillips  V.  Friend,  2  Fairf.  411;  v.  Betzer,  20  La.  An.  137  ;  Batch- 

elor  «.  Creditors,  ib.  193. 

upon  a  default,  as  well  as  from  one  rendered  after  trial  on  an  issue  joined, 
llolman  v.  Sigourney,  11  Met.  436.  An  appeal  lies,  in  Iowa,  from  a 
judgment  by  default,  or  a  decree  pro  confesso.  Woodward  v.  Whites- 
carver,  6  Clarke,  1.  A  judgment  upon  a  confession,  reserving  the  right 
of  an  appeal,  is  appealable.    Melins  v.  Home,  29  Geo.  536. 


CII.  XXI.]  APPEAL.  707 

right  of  the  freehold  must  he  dlrccthj  the  suhjcct  of  action, 
and  the  judgment  must  he  conclusive  of  the  right  until 
reversed.* 

§  18.  "While  a  statute  was  in  force,  prohibiting  an  appeal 
from  a  justice  of  the  peace,  except  in  certain  specified  cases, 
unless  the  sum  in  demand  exceeded  seven  dollars,  an  action 
was  brought  by  the  selectmen  of  a  to\yn,  demanding  seven 
dollars  damages,  to  recover  the  expenses  incurred  by  them, 
in  removing  a  fence  from  the  public  highway,  under  the 
act  to  prevent  and  remove  nuisances;  to  which  the  de- 
fendant pleaded  the  general  issue,  and  also  that  the  land 
from  which  the  fence  was  removed  was  his  soil  and  free- 
hold. Held,  Buch  action  was  not  within  a  provision  con- 
cerning appeals  on  plea  of  title,  nor  one  concerning  appeals 
where  the  plaintiff's  right  of  way  is  in  question.^ 

§  19.  A  statute,  prohibiting  an  appeal  to  correct  a  "cle- 
rical misprision"  until  the  court  below  has  refused  to  cor- 
rect it,  applies  to  a  premature  judgment.'  But  not  to  an 
omission  to  serve  proper  process  on  the  defendant  before 
rendering  judgment.^ 

§  20.  It  is  generally  hold,  that,  where  a  party  has  a  judg- 
ment Avholly  in  his  own  favor,  and  sutlers  no  injury  from 
it,  an  appeal  will  not  be  allowed ;  he  must  prosecute  a  writ 
of  error.^ 

§  21.  An  appeal  does  not  lie  for  re-examination  of  facts, 
after  satisfaction  of  the  judgment.^ 

'  Rose  v.  Chotcan,  11  111.  1G7.  448  ;   Iloltou  v.  Rugglos,   1  Root, 

2  Wildman  v.  Rider,  23  Conn.  318 ;  Raymond  v.  Barker,  3  ib. 
173.  370 ;  Eyler  «.   Hoover,  8  Md.  1  ; 

3  Webber  ».  Webber,  1  Met.  Barker  o.  Ilobbs,  G  Ind.  385.  But 
(Ky.),  18.  see  Lemoir  v.  South,  10  Ired.  337. 

»  Amyx  'c.  Smith,  1  Met.  (Ky.),  "  Roberts  y.  Cautrell,  3  Ilayw. 
529.  230. 

5  Addix   V.  Fahnestock,  15  111. 


708  THE    LAW    OF    NEW    TRIALS.  [CH.  XXI. 

§  22.  Appeal  may  be  noticed  in  connection  witli  other 
forms  of  rehearing.(a) 

§  23.  Appeal  and  error  seem  to  be  sometimes  used  pro- 
miscuously.^ But  a  statute  allowing  a  writ  of  error  does 
not  take  away  the  right  of  appeal  from  a  final  decree.^ 

§  24.  As  we  have  already  stated,  appeal  is  generally 
held  to  be  an  exclusively  statutory  remedy. 

§  25.  In  Maryland,  the  qualified  rule  is  laid  down,  that, 
unless  by  express  statute,  an  appeal  will  not  lie  in  any  case 
in  which  a  writ  of  error  would  not  lie.^ 

§  26.  In  ISTew  York,  a  final  judgment  was  rendered  in 
the  Supreme  Court  in  May,  1848,  before  the  code  of  pro- 
cedure took  effect.  After  the  code  took  effect,  an  appeal 
was  brought  according  to  its  provisions.  Held,  the  judg- 
ment could  be  reviewed  only  by  writ  of  error  according 
to  the  old  law;  and  the  appeal  was  dismissed.* 


'  Nill  7).  Comparet,  16  Ind.  107.        2  Hallowell's,  &c.,  20  Pcmi.  215. 
See  Bolton  v.  McKinley,  19  111.  404;        3  Savage,  &c.  v.  Owings,  3  Gill, 

Isaacs  V.  Beth,  19  N.  Y.  (5  Smith)  497. 
584.  *  Rice  «.  Floyd,  1  Comst.  008. 


(a)  As  to  neiv  trial  and  appeal,  in  case  of  a  verdict  against  evidence, 
sec  Young  v.  Davis,  30  N.  Y.  (3  Tiffa.)  134;  Morrison  v.  Whiteside, 
17  Md.  452.  It  is  held  that  no  appeal  lies  from  an  order  for  a  new  trial. 
White  V.  Harvey,  23  Ind.  55  ;  Comstock  v.  Ward,  22  111.  248.  In  Illinois, 
a  writ  of  certiorari  to  a  justice  of  the  peace  is  distinct  and  separate  from 
an  appeal ;  and,  if  dismissed  in  the  Circuit  Court,  an  appeal  or  writ  of 
error  should  be  prosecuted  to  reform  that  judgment.  On  the  hearing  in 
the  Supreme  Court  to  revise  the  judgment  of  the  justice  on  appeal,  the 
judgment  on  the  certiorari  cannot  be  examined.  Chicago,  &c.  11.  R.  Co. 
V.  Whipple,  22  111.  337.  In  Delaware,  appeal  and  certiorari  arc  concur- 
rent remedies.  Williams  v.  Burchinal,  3  ITarring.  83.  Where  certiorari 
issues,  to  test  the  power  and  jurisdiction  of  the  inferior  court  to  act  at  all 
in  the  matter,  and  not  to  try  the  correctness  of  its  action  ;  the  decision 
of  the  superior  court  is  appealable.     15  Md.  193. 


CH.  XXI.]  APPEAL.  709 

§  27.  An  appeal  does  not  lie  from  an  order  overruling  a 
motion  to  quash  a  writ  of  error  coram  nobis,  it  not  being 
a  final  judi^ment.*  In  Alaljama,  an  appeal  will  not  be 
dismissed,  because  the  record  shows  that  a  writ  of  error 
was  sued  out  on  the  judgment,  when  it  does  not  appear 
that  any  transcript  was  filed  at  the  term  to  which  the 
writ  was  returnable,  and  the  judgment  has  not  been 
affirmed.^ 

§  28.  In  some  cases,  appeal  and  error  are  alike  held  to 
be  an  inapplicable  remedy.  Thus,  where  a  party  enters  a 
judgment  not  authorized  by  the  verdict,  the  proper  remedy 
is  by  motion,  not  by  appeal  or  error.^  So  where  a  referee 
directed  judgment  for  return  of  possession  or  for  the  ascer- 
tained value,  and  judgment  was  entered  for  the  value  only ; 
held,  it  was  a  mistake  to  be  corrected  on  motion  below, 
and  not  ground  for  an  appeal.* 

§  29.  An  appeal  is  held  not  to  lie  from  an  order  of  a 
Circuit  Court  to  -put  a  purchaser  of  property  sold  under 
its  direction  in  possession.  The  proper  remedy  is  an 
injunction.^ 

§  30.  Audita  querela  cannot  be  maintained  in  case  of  re- 
fusal to  allow  an  appeal.^  But,  in  Massachusetts,  where  a 
party  intends  to  appeal,  and  supposes  he  has  done  so,  when 
in  fact  he  has  not;  he  is  entitled  to  a  review. X«) 

§  31.  One  cannot  prosecute  his  appeal  from  a  judgment 
at  law  and  his  petition  in  chancery  enjoining  collection 

>  Bridendolpli  v.  Zellers,  3  Md.        s  Callan  v.  May,  2  Black,  o-ll. 
325.  s  Bradish  v.  Redway,  35  Verm. 

2  Cooper  V.  Macliu,  25  Ala.  298.  424. 

3  Eaton  V.  Caldwell,  3  Min.  134.        ?  riutcliinson  v.  Gurley,  8  Allen, 
t  In^'ersoll  v.  Bostwick,  22  N.  Y.  23. 

(8  Smith)  425. 


(a)  Appeal  and  review  do  not  lie  coucurrontly.     Kirk  v.  Reynolds,  12 
Cal.  99. 


710  THE   LAW    OF   NEW    TRIALS.  [CII.  XXT. 

thereof,  at  the  same  time;   the  institution  of  the  equity 
proceedings  is  a  release  of  errors  in  the  action  at  law.^ 

§  32.  The  different  proceedings,  in  which  an  appeal  has 
been  claimed,  and  either  admitted  or  denied,  are  of  course 
of  a  very  various  character.  It  is  held,  in  general,  that  a 
general  statute  on  the  subject  of  appeals  applies  only  to 
usual  and  ordinary  civil  proceedings,  and  does  not  embrace 
proceedings  under  special  acts.^  In  reference  to  the  general 
requisite,  that  they  must  be  in  their  nature  judicial^  in 
order  to  be  thus  revised;  it  is  held,  that,  where  any  power 
is  conferred  upon  a  court,  to  be  exercised  by  it  as  a  court, 
in  the  manner  and  with  the  formalities  of  a  court  and  in 
its  ordinary  proceedings,  the  action  of  such  court  is  to  be 
regarded  as  judicial,  irrespective  of  the  original  nature  of 
the  power;  and  the  determination  of  the  court  thereon 
may  be  therefore  appealable.^(a)  Thus  the  power  of  re- 
moval from  office,  for  cause,  being  conferred  upon  a  court, 
is  a  judicial  and  not  an  executive  function ;  and  an  order 
for  such  removal  is  appealable.^  But  where  a  referee 
appointed  by  the  court  to  make  a  sale  claimed  certain 
fees;  and  the  parties  agreed  to  refer  the  matter  to  the 
judge:  held,  no  appeal  lay  from  his  decision,  as  he  acted 
only  as  arbitrator.^ 

§  33.  The  question  of  appeal  is  often  raised  in  connection 
with  habeas  corpus.  "Where,  as  is  usual,  the  jurisdiction 
of  a  court  of  appeals  extends  only  to  the  final  orders  and 
judgments  of  inferior  courts,  and  not  to  those  which  judi- 
cial officers  are  authorized  to  make  out  of  court ;  an  order 

'  Gordon  t).  Ellison,  9  Iowa,  317.  *  Lowe    «.    Commonwealth,    3 

*  Allen  V.  Ilostctter,  16  Ind.  lo.  Met.  (Ky.)  237. 

3  Henry  v.  Cooper,  22  N.  Y.  (8  ^  Lansing's,  &c.,  10  Wis.  120. 
Smith)  67. 

(a)  In  New  York  it  is  appealable,  if  it  is  a  final  order  afifecting  a 
snl)stantial  right,  in  a  special  proceeding.  As,  for  example,  an  order 
refusing  the  admission  of  an  attorney.     [Three  judges  dissenting.] 


CH.  XXT.]  APPEAL.  711 

on  a  writ  of  habeas  corjms  is  not  an  order  of  court,  and 
cannot  bo  appealed  from,  even  thongli  heard  and  decided 
in  court.^  So  an  appeal  does  not  lie  from  a  decision  of  the 
court  below  remanding  a  prisoner,  brought  up  on  habeas 
corpus  to  the  Supreme  Court,  where  the  jurisdiction  of  the 
two  courts  is  concurrent  in  all  criminal  matters,  and 
because  the  decision  is  not  a  final  judgment.^  Nor  on  the 
refusal  of  a  judge  below  to  discharge  a  prisoner,  on  the 
writ  of  habeas  corpus.^  And  the  appellate  power  conferred 
upon  a  court,  to  revise  the  judgments  of  justices  of  the 
peace,  does  not  authorize  that  court  to  do  so  on  habeas 
corjms.'^  j^or  does  an  appeal  lie  from  a  judgment  of  the 
court  below,  overruling  a  motion  for  a  discharge  from 
custody  upon  the  return  of  a  habeas  corpus,  this  not  being 
a  judgment  or  determination  of  that  court,  in  a  civil  suit 
or  action.^ 

§  34.  An  appeal  will  not  lie  on  a  refusal  to  grant  a 
mandamus.^ 

§  35.  It  is  sometimes  held,  that  proceedings  for  confe?/i/)< 
in  not  carrying  out  orders  of  the  court,  in  the  execution 
of  which  parties  are  interested,  are  appealable,  because 
they  are  in  the  nature  of  civil  remedies.^  Thus  an  order, 
fining  an  attorney  for  contempt,  was  held  the  subject  of 
appeal  before  the  fine  had  been  paid;  an  appeal  not 
necessarily  operating  as  a  supersedeas  in  all  cases.^  But, 
on  the  other  hand,  the  remedy  is  held  not  applicable  in 
case  of  contempt,  unless  specially  authorized  by  statute.^ 


'  Weddinijton  v.  Sloan,   15    B.  '  State  v.    Giles,  10  Wis.    101  ; 

Mon.  147.     See  State  v.  Gallowaj^,  Ware  v.  Robinson,  0  Cal.  107.    See 

5  Colli.  326;  Coston,  23  Md.  271.  Romcyn  v.  Caplis,  17  Mich.  440. 

2  Yarbrough  v.  The  State,  2  Tex.  s  State  v.  Hunt,  4  Strobh.  322. 

519.  9  Crow    V.   State,    24  Tex.    12; 

8  Howe  V.  State,  9  Mis.  690.  Hunter  v.  State.  6  Ind.  423;  Cooper, 

♦  State,  itc.  V.  Mace,  5  Md.  337.  32  Vt.  253  ;  :\rartiu's  case,  5  Ycrg. 

5  Bell  V.  The  State,  4  Gill,  301.  450. 

^  Shrevcr  v.  Livingston,  &c.,  9 
Mis.  190. 


712  THE   LAW    OF   NEW    TRIALS.  [CII.  XXI. 

The  distinction  is  made,  that,  although  a  court  of  appeals 
cannot  and  ought  not  to  re-try  a  question  of  contempt  or 
no  contempt,  and  has  no  jurisdiction  for  that  purpose; 
still  it  has  power  to  revise  and  correct  erroneous  and 
illegal  sentences  or  judgments  pronounced  against  such 
ofltences.  As  in  case  of  an  order,  directing  the  name  of 
an  attorney  to  be  stricken  from  the  roll,  upon  charges  of 
malpractice  and  official  misconduct.^ 

§  36.  To  authorize  an  appeal,  there  must  be  a  judg- 
ment.(rt)  Thus,  on  appeal  from  a  justice  of  the  peace,  if 
it  appears  that  no  judgment  was  entered  by  the  justice, 
the  appeal  must  be  dismissed.^  So  if  the  record  does  not 
show  that  a  judgment  was  rendered.^  So  if,  on  appeal, 
it  does  not  appear  of  record  that  a  judgment  has  been 
rendered,  but  only  a  verdict.^  And,  in  Massachusetts,  an 
action,  entered  by  the  defendant  in  the  Court  of  Common 
Pleas,  on  appeal  from  a  justice  of  the  peace,  might  be 
dismissed  on  the  defendant's  motion,  if  the  justice  never 
rendered  any  judgment  on  the  verdict  returned  for  the 
plaintiif  on  the  trial  before  him,  although  the  action  was 
one  which  might  have  been  commenced  in  the  Court  of 
Common  Pleas.^  So  a  decision  on  a  demurrer  is  a  judg- 
ment, and  must  be  perfected  like  one  before  it  is  ap- 
pealable.^ 

§  37.  In  addition  to  this  requisite,  appeal,  like  a  writ 


'  Tumor  v.    Commonwealtli,   3  *  Harrison  v.  Singleton,  2  Scam. 

Met.  (Ky.)  G19.  21. 

2  Kimble    v.  Riggin,   2   Greene  ^  Bowler  v.  Palmer,  2  Gray,  553. 
(Iowa),  245.  '^  Cummings  v.    Heard,  2  Min. 

3  Brown    «.    Scott,    2     Greene  34. 
(Iowa),  454. 


(a)  It  is  held,  that  an  error  in  entering  judgment  in  a  justice's  court 
can  only  be  corrected  in  the  appellate  eourt  by  a  rcTcrsal  and  bringing 
a  new  action.     Hardy  v.  Seelye,  1  HUt.  90. 


en.  XXI.]  APPEAL.  713 

of  error,(a)  is  generally  confined  to  a  final  judgment.  It 
cannot  be  taken,  unless  expressly  authorized  by  statute, 
from  a  judgment  merely  interlocutory  ov  in'ovisional} 

%  38.  And  this  rule  applies,  although  a  statute  "  regu- 
lating appeals"  provides,  that  in  equity  "any  party  may 
appeal  from  any  order  or  decree;"  such  construction  Ijeing 
given,  in  view  of  the  other  provisions  of  that  and  other 
kindred  statutes.^  Thus  an  order  for  the  allowance  of  a 
plea,  and  thereupon  for  the  dissolution  of  an  injunction, 
is  not  final  or  appealable.^  Nor  an  interlocutory  decree 
made  on  a  motion  to  dissolve  an  injunction.^  !N'or  a  mere 
decree  for  costs.^(6)     ISTor  does  an  appeal  lie,  where  a  prize 

'  Lord  V.    Ostrander,  43   Barb.  Harrell,  il).  41  ;   Powell  v.  Central 

387;    15   B.  Mon.  47;     Dows  v.  Plank  Road  Co.,  24  Ala.  441;  Keel 

Congdou,  28  N.  Y.  (1  Tifla.)  122;  v.  Bently,    15  111.    328;   Shotwell 

Roome  v.  Phillips,  27  N.  Y.   (13  v.  Taliaferro,  2,"]i  Miss.  lOo;  States. 

Smith)    357;   Walmcr  «.  Shulen-  Smith,  42  Mis.  550;  Pryor  «.  Smith, 

bergcr,  23  Ind.   454  ;    INIclcher   v.  4  Bush,  379  ;  OflFut's  v.  Bradford, 

Frendeubnrg,  18  ib.  180  ;  Martin-  ib.  413;  Inman  v.  Strattan.  ib.  445; 

dale  V.  Brown,  ib.  284  ;  McGregor  Ilanna   v.   Putnam,    20   Ind.   170; 

v.  McGregor,  32  N.  Y.  (5  Tifla.)  Ilazlehurst  v.  JMorris,  28  Md.  67; 

479;  House  v.AVright,  22  Ind.  383;  Smithson  v.  United  States,  29  ib. 

Ilarting  v.  The  People,  26  N.  Y.  162  ;  Pumphney  v.  Brown,  3  W. 

(12  Smith)  154  ;  Dc  Barry  v.  Lam-  Va.  9;  Block  v.  Barthc,  20  La.  An. 

bcrt,  10  Cal.  503;  Griffin  v.  Cran-  344;   State   v.   Bonchon,    ib.   394; 

stou,  5Bosw.  658;  Keirle?).Shriver,  State  ».  Sixth,  ib.  574;   Wells  v. 

11  Gill  &  Johns.  405;  The  State  N(!W   Orleans,    ib.   300;   Stoppen- 

V.    Pepper,  7  Mis.    348 ;    Gray  v.  bach   v.    Tohriart,    21    Wis.    385  ; 

Grundy,    2     J.    J.    Marsh.    134 ;  Ilulett  v.  Matteson,  12  Min.    349  ; 

Ilorseley  v.  Hopkins,  ib.  54 ;  Read  Cummings  o.  State,  4  Kans.  225. 

11.  Roble,  4  Yerg.  66;  Berryhill  ®.  2  Chouteau  v.  Rice,  1  Min.  24. 

McKee,  3  Yerg.   157  ;    Joslyn   v.  »  Ibid. 

Sappington,  1  Overt.  222;  Hoyt  «.  •»  Ewing  v.  Kinnard,  2  Tex.  163. 

Brooks,  10  Conn.  188  ;  Latham  v.  ^  Higbee  v.  Bowers,  9  Mis.  354. 
Bowen,  3  Hawks,  418;  Medford  v. 


{a)  It  is  sometimes  held  that  error  is  the  only  mode  of  revising  an 
interlocutory  judgment.     Robiuson  v.  Baillead,  2  Tex.  160. 

(t)  No  appeal  lies,  under  St.  13  and  14  Vict.,  c.  61,  §  14,  from  the  de- 
cision of  a  county  court  on  an  interlocutory  matter,  such  as  the  taxation 
of  costs  under  St.  19  and  20  Vict.,  c.  108,  I  34.  An  appeal  on  such  a 
matter  having  been  brought,  the  court  refused  to  hear  the  point  argued, 
on  the  ground  that  they  had  no  jurisdiction,  but  entertained  the  appeal 
so  far  as  to  dismiss  it  with  costs.     Carr  v.  Stringer,  1  Ell.  B.  «t  E.  123. 


714  THE   LAW    OF   NEW    TRIALS.  [CII.  XXI. 

vessel  had  been  condemned,  and  the  captors  moved  for 
jud<!;ment  on  a  stipnlation  bond,  upon  which  the  money 
had  been  paid  out  of  the  registry  of  the  court,  and  the 
motion  was  overruled.^  iSTor  from  an  order  appointing  a 
receiver,  but  making  no  disposition  of  the  funds,  except 
directing  the  payment  of  certain  accrued  costs.^  Nor 
from  an  order  ajipointing  a  receiver  of  mortgaged  pro- 
perty, and  requiring  him  to  rent  out  a  portion  of  it  for  a 
limited  term.^  IS'or  a  judgment  for  the  sale  of  mortgaged 
lands  for  the  benefit  of  the  mortgagees,  and  that  a  deduc- 
tion for  rents  and  profits,  received  by  them  while  in  pos- 
session, shall  be  made  according  to  the  report  of  a  referee 
appointed  to  ascertain  the  amount  thereof.'*  Kor  an  order 
for  an  administrator's  sale.^  Or  setting  aside  a  default 
and  judgment.^  So  where  a  judgment  is  entered  against 
the  defendant,  and  afterwards  the  court  on  motion  arrests 
the  judgment,  but  no  final  judgment  is  entered  after  the 
motion  in  arrest  is  sustained ;  the  case  is  still  pending  in 
the  court  below,  and  an  appeal,  being  premature,  will  be 
dismisscd.^(a)  So  an  order  that,  upon  the  coming  in  of  a 
report,  a  peremptory  mandamus  issue,  is  not  a  final  order, 

1  Moore    V.   Schooner,   &c.,    11  ^  Tompkins  v.  Hyatt,  19  N.  Y. 
Tex.  655.  (5  Smith)  534. 

2  Eaton,  &c.  v.  Varnum,  10  Ohio  ^  Love  v.  Mikals,  13  lud.  439. 
(N.  S.),  G22.  ^  Spauldiug   v.    Thompson,    ib. 

3  ]\Iaysville,  &c.  v.  Punnett,  15  477. 

B.  Mou.  47.  '  Garesche  v.  Emerson,  31  Mis. 

258. 

A  decree  in  equity,  disposing  of  all  the  matters  in  controversy,  but  re- 
serving the  question  of  costs,  is  interlocutory  and  not  final.  Williams  v. 
Field,  2  Wis.  421. 

(a)  In  New  York,  the  special  term  on  motion  amended  a  judgment, 
and  at  general  term  the  order  allowing  the  amendment  was  reversed. 
An  appeal  therefrom  was  dismissed,  because  the  order  of  I'eversal  was^ 
neither  a  final  judgment,  nor  an  order  which  in  effect  determined  the 
action  and  prevented  a  final  and  appealable  judgment,  its  effect  being 
to  leave  in  force  the  original  judgment,  which  was  appealable  unless  the 
right  had  been  lost  by  delay.  N.  Y.,  &c.  v.  North,  &c.,  23  N.  Y.  (9 
Smith)  357. 


en.  XXI.]  APPEAL.  715 

from  which  an  appeal  will  lie'  Xor  a  judgment  not  to 
transfer  a  suit  to  tlic  United  States  court.^  iSTor  a  decree 
in  equity  for  the  distribution  of  funds  not  collected,  but 
secured  by  judgments,  and  appointing  a  master  to  state 
an  account.^  Nor  a  decretal  order  sustaining  a  general 
demurrer  to  a  bill  in  equity,  but  not  in  terms  dismissing 
the  bill,  or,  if  dismissing  it,  not  stating  whether  without 
prejudice  or  not;  also  saying  nothing  about  costs.^  ISTor 
an  order  of  chancery  opening  for  review  a  decree  for  ali- 
mony, in  a  divorce  case,  and  referring  it  to  a  commis- 
sioner to  take  testimony  and  report.^  Nor  an  order  grant- 
ing a  writ  of  alternative  mandamus.\a)  Nor  a  judgment 
quashing  a  writ  of  scire  facias  upon  a  forfeited  recogni- 
zance.' Nor  a  judgment  in  a  partition  suit,  that  parti- 
tion be  made.^ 

§  39.  And  an  appeal  does  not  lie  from  a  judgment  of 
nonsuit  for  not  complying  with  an  interlocutory  order.^ 

§  40.  It  is  held  that  a  criminal  case  cannot  be  brought 
into  the  appellate  court,  by  agreement, before  a  final  judg- 
ment below.'*' 

§  41.  It  is,  however,  sometimes  held,  that  an  appeal  lies 
from  an  interlocutory  decree."   And  numerous  cases  illus- 

•  People  V.  Haws,  34  Barb.  GO.  ^  The  State  v.  Vauglian,  14  Ark. 

2  Hopper  V.   Kalkmau,   17  Cal.     424. 

517.  s  McMurtry    v.    Glasseock,    30 

3  Ogilvie  V.  Knox,  &c.,  3  Black,     Mis.  433. 

539.  9  Hoyt  v.  Brooks,  10  Conn.  188. 

*  Blackwood  v.  Van  Vlcet,  10  '«  Butter  v.  State,  1  Clarke  (lo- 
Mich.  398.  wa),  99. 

5  Perkins  v.  Perkins,  10  Mich.  "  Cover  v.  Hall,  3  Har.  &  -T.  43; 
435.  Smith  v.  Lawrence,  3  Wis.  779. 

6  The  State  v.  Anson,  Busb.  303. 

(a)  In  New  York,  an  appeal  lies  from  an  order  issuing  a  mandamus, 
under  the  statute  of  1854,  authorizing  an  appeal  "from  any  judgment, 
order,  or  final  determination,  made  at  any  special  term  of  the  court  in 
any  special  proceeding  therein."     People  v.  Schoonmaker,  19  Barb.  G57. 


71G  THE    LAW    OF   NEW    TRIALS.  [CH.  XXI. 

trato  the  right  of  ai)pGal  from  a  judgment  wliich  is  sub- 
stantially  finah^(a)  As  in  the  case  of  the  appointment  of 
a  receiver  and  a  final  account.^  So  in  case  of  a  conditional 
iujunction.3  Or  an  order  setting  aside  a  sale  of  mortgaged 
premises,  made  under  a  decree  of  foreclosure;  which  is 
final  as  to  the  purchaser  after  confirmation  of  the  com- 
missioner's report.*  Or  an  order  made  under  §  4094  of 
(Mich.)  Comp.  L.,  punishing  a  party  for  a  contempt  for 
violating  an  injunction.^  Or  the  finding  a  certificate  re- 
quired by  the  "  landlord  and  tenant"  act  of  Illinois."  Or 
an  order  setting  aside  an  execution  sale,  and  ordering  a 
new  execution;  upon  the  ground  that  it  is  final,  affects  a 
substantial  right,  and  is  made  on  a  summary  application 
after  judgment.  (Minnesota  Rev.  St.,  c.  80,  §  11,  subd. 
3.)^  Or  a  judgment  overruling  a  motion  to  quash  an 
execution.^  So,  in  Minnesota,  a  decision  on  a  motion  to 
strike  out  pleadings,  or  parts  thereof,  in  an  equitable  ac- 
tion, is  appealable.''  And  an  appeal  lies  from  a  judgment 
on  an  issue  found  between  the  plaintiff"  in  attachment  and 
an  interpleader,  before  the  final  determination  of  the  cause 
between  the  plaintiff'  and  defendant.^''  So  the  court  has 
jurisdiction  to  determine  who  has  the  right  to  the  control 
of  a  suit,  brought  in  the  name  of  one  for  the  benefit  of 
another;  and  its  decision  is  appealable."  So  where  a  jus- 
tice, on  hearing  the  evidence,  nonsuited  the  plaintiff';  it 
was  held  a  judgment  on  the  merits,  from  which  the  plain- 
tiff" might  appeal.'-     And  if  the  court  arrest  judgment,  or 

'  Adams  v.  Woods,  18  Cal.  30 ;        '  Tillman   v.   Jackson,    1   Min. 

Graft"  V.  Merchants,  &c.,  18  Md.  18;{. 
364.  8  Scott  V.  Allen,  1  Tex.  508. 

2  Neall  V.  Hill,  10  Cal.  145.  »  Woir«.  Bannin-,s  3  Min.  203. 

3  Ely  y.  Frisbie,  17  Cal.  250.  'o  Weisenecker  y.  Kepler,  7  Mis. 

4  Bnllard  v.  Green,  9  ]\Iich.  222.  52. 

5  People  y.  Simonson,  ib.  492.  "  May  v.  Hardin,  13  B.  ]\Ion.  344. 

6  Wade  V.  Halligan,  16  111.  507.         '^  Smith  v.  Crane,  12  Verm.  487. 

(rt)  In  Louisiana,  an  exception  is  made  to  the  general  rule,  in  case  of 
zrrcparahle  injury.  White  v.  Cazenave,  14  La.  An.  57 ;  Horton  v. 
Thornhill,_ib.  142  ;  Young  v.  Chamberlain,  ib.  687. 


CII.  XXI.]  APPEAL.  717 

send  the  parties  out  of  court  without  giving  any  juclgnient, 
in  cases  where  an  ai»[)cal  Ym^  from  a  final  decision;  an 
appeal  may  be  sustained.^ 

§  42.  And,  although  an  appeal  cannot  be  taken  until 
final  judgment:  yet  where,  as  in  some  States,  appeal  is  in 
the  nature  of  application  for  a  new  trial,  and  involves  or 
turns  upon  questions  of  law ;  it  is  held  the  right  and  duty 
of  api^ellate  courts  to  revise  interlocutory  orders  and  de- 
crees aft'ecting  rights,  equally  with  final  decrees.  The 
enunciation  by  the  judge  of  the  law  upon  the  facts  is  the 
judgment,  and,  whether  partial  or  final,  it  is  the  function 
of  appellate  courts  to  determine  whether  it  is  correct  or 
not.^  Thus  an  appeal  from  the  decree  for  a  rule  in  a  par- 
tition suit  brings  up  the  order  ratifying  the  return  of  the 
commissioners.  (Md.  St.  1830,  c.  lS5.f  So  after  final 
judgment  upon  issues  of  fact,  against  one  whose  demurrer 
has  been  overruled,  be  may  appeal  from  the  ruling  on  the 
demurrer.^  And,  after  reversal  of  an  interlocutory  order 
in  equity  upon  a  demurrer,  the  case  will  be  remanded,  and 
not  finally  disposed  of  in  the  appellate  court. ^ 

§  43.  A  judgment  of  a  justice,  after  reciting  the  names 
of  the  parties,  the  amount  claimed,  the  cause  of  action, 
and  that  the  cause  liad  come  before  him  by  change  of 
venue,  recited,  that  the  parties  met  by  counsel  before  him, 
that  the  testimony  was  heard,  and  that  "  it  is  believed 
that  the  plaintifi"  is  entitled  to  seventy-five  dollars  debt, 
and  costs  taxed  as  follows."  Held,  that  this  appeared  to 
be  a  final  adjudication,  exhibiting  the  parties,  the  matter 


'  Lamplicar  v.  Lamprey,  4  Mass.  '  Plielps  r.  Stewart,  17  'Md.  231; 

108;  Tappan  v.  Brueu,  o  Jlass.  1!)5;  Joslyn  v.  Sappiiigtou,  1  Overt.  23'2. 

Bemis  v.  Faxon,  3  ib.  141;  Buck-  ■*  Schindel  y.  Suman,  111  ]\Iil.  lilO; 

man   v.  Buckman,  4  N.  H.  31!);  IMaynard  ?'.  Ho^kills,  S  ]Mich.  81. 

Page  V.  Hurd,  1  Aik.  lOo.  5'i>i(.rsou    v.    David,    1    Clarke 

«  State  V.  ^'orthcru,  6cc.,  18  Md.  (Iowa),  23. 
193. 


718  THE    LAW    OF   NEW    TRIALS.  [CH.  XXI. 

in  dispute,  and  the  result,  and.  therefore  ii  good  final  judg- 
ment to  be  appealed  from.^ 

§  44.  Questions  sometimes  arise,  as  to  what  constitutes 
the  final  judgment  or  decree. 

§  45.  Thus  where,  in  the  United  States  Court,  upon  a 
libel  against  ship-owners,  a  decree  passed  against  them 
for  over  $2,000,  with  leave  to  set  oft'  a  sum  due  them  for 
freight,  which  would  reduce  the  amount  decreed  against 
them  to  less  than  §2,000  ;  and  the  party  elected  to  make 
the  set-oft',  saving  his  right  to  appeal:  held,  the  reduced 
decree  was  the  final  decree,  and  the  party  could  not  save 
a  right  of  appeal  where  it  was  not  allowed  by  act  of  Con- 
gress.^ And  it  is  held,  that  the  practice  of  making  a  de- 
cree final  in  form,  by  anticipation  of  a  commissioner's  re- 
port on  a  reference  to  him,  is  objectionable,  and  the  decree 
will  not  be  considered  final  for  purposes  of  appeal,  until 
the  commissioner's  report  is  actually  made  and  allowed.^ 

§  46.  As  in  case  of  new  trial,  an  appeal  cannot  be  taken 
from  rulings  or  decisions  upon  matters  which  are  merely 
discretionary.*  Thus  from  a  refusal  to  grant  a  continuance, 
on  account  of  the  absence  of  a  witness,  although  the 
court  may  have  mistaken  the  rights  of  parties  as  to  com- 
pelling attendance.*  Or  leave  to  amend  pleadings.*'  Or 
refusing  leave  to  file  a  supplemental  answer  in  equity.^ 
Or  a  ruling  upon  the  question,  whether  counsel  may  open 

'  Stowers  V.  Milledge,  1  Clarke  Wright,  5G8 ;  85  Ala.  226 ;  Sayre 

(Iowa),  150.  «.    i)unvood,  ib.   247;   Gandy   v. 

2  Sampson  ■o.  Welsh,  24  How.  Humphries,  ib.  617;  People  v. 
207.  The   New  York,    &c.,   29   N.  Y. 

3  Enos  V.  Sutherland,  9  Mich.  (2  Tiffa.)  418;  Dows  ».  Congdon, 
148.  28  N.  Y.  (1   Tiffa.)  122  ;  Brady  ». 

«  Ellicott  V.  Eustace,  6  Md.  506  ;  Dilley,  27  Md.  570  ;  Henry  v.  Kauf- 

The  State  v.  Bogue,  9  Ired.  300  ;  man,  24  ib.  1. 
State   V.    Lamon,  3  Hawks,  175;        ^  Locket «.  Child,  11  Ala.  640. 
Sneed  v.  Lee,  3   Dev.  364;    Can-        '^  New  York,  &c.  «.  North,  &c., 

non  ».  Becmer,  ib.  36:5 ;  liallcngcr  23  N.   Y.   (9  Smith)  357  ;  6  Md. 

V.   Barnes,   ib.  400  ;    Pratt  v.  Kit-  506. 
tcrcll,  4  ib.  168 ;  Price  v.  Orauge,        ^  Calvert  v.  Carter,  18  Md.  73. 


CII.  XXI.]  APPEAL.  719 

and  close  to  tljo  jury,  unless  decided  abuse  be  shown.'  Or 
an  order  setting  aside  a  foreclosure  sale,  and  directing  a 
resale.-  Or  an  order  vacating  a  decree  pro  coiifcsso^  and 
allowing  the  defendant  to  answer.^  Or  the  refusing  a  new 
trial,  unless  a  remittitur  is  entered  as  to  a  portion  of  the 
verdict.*  So  decisions  as  to  a  change  of  venue  in  a  crimi- 
nal case  are  not  appealable.^  So  where  the  United  States 
Circuit  Court  certified,  that  they  had  divided  in  opinion 
upon  a  question,  whether  a  party  luid  a  right  to  proceed 
summarily  on  motion  to  vacate  a  decree  in  that  court ; 
held,  the  question  was  one  of  practice,  in  regard  to  which 
the  court  had  discretionary  power,  which  could  not  be 
revised  upon  appeal.^  So  the  question  of  granting  a 
rehearing,  after  an  amendment  to  a  bill  in  equity,  is 
addressed  to  the  discretion  of  the  court,  from  whose 
decision  no  appeal  lies.'^  So  the  court  has  power  and  dis- 
cretion to  take  up  a  case  out  of  the  regular  order ;  if  the 
party  objects,  he  should  move  for  a  continuance,  and  except 
to  the  ruling  of  the  court  thereon ;  he  cannot  except  to 
the  action  of  the  court  in  taking  up  the  case.^  So  an 
order  of  reference,  in  a  case  in  which  the  court  has  autho- 
rity to  refer  at  its  discretion,  is  not  appealable.^  So  a 
motion  to  open  a  default  is  addressed  to  the  discretion  of 
the  court,  and  from  its  order  no  appeal  lies.'"  'Soy  from 
an  order  quashing  an  order  of  attachment."(«)     IN'or  an 

1  Smith  V.  Coopers,  9  Iowa,  376.        ^  French -«.  Howard,  14IucI.455. 

2  Buffalo,  &c.  V.  Newton,  23  N.  »  Ubsdell  v.  Root,  1  Hilt.  173  ; 
Y.  (0  Smith)  IGO.  Kennedy  v.  Shilton,  ib.  546. 

3  Perrin  v.  Oliver,  1  Min.  202.  '"  Muldenor    v.    McDonough,    2 
^  Baltimore  i;.  Reynolds,  18  Md.     Hilt.  46;  Churchill -y.  Mallison,  ib. 

270.  70. 

5  SlcCorklc  V.  State,  14  Ind.  39.  "  Humphrey  v.  Hezlep,  1  Min. 

6  Wiggins  V.  Gray,  24  How.  303.  239. 

7  Hoyt  V.  Smith,  28  Conn.  466. 

(a)  A  party  not  entitled  to  a  new  trial,  as  matter  of  right,  moved  for 
one,  which  was  granted  by  the  court  in  its  discretion,  upon  terms.  He 
appealed  from  the  order  granting  it  ou  terms,  asking  its  reversal  on 
account  of  the  terms.  Held,  being  a  matter  of  discretion,  it  was  not 
reviewable  on  appeal.     Burger  v.  White,  2  Bosw.  92. 


720  THE    LAW    OF    NEW    TRIALS.  [CH.  XXI. 

order  on  a  motion  for  ca  new  trial.^  Or  on  an  application 
to  open  a  sale  under  a  judgment,  on  the  ground  of  mis- 
aj^prchension  as  to  the  time  of  sale;  or  other  proceedings, 
not  affecting  the  regularity  of  the  proceedings.^ 

§  47.  It  is  sometimes  held,  however,  that  orders  made 
in  the  discretion  of  the  court  may  be  appealed  from.^ 
Tlius  the  (qualified  rule  is  laid  down,  that  the  court  above 
will  not  review  decisions  on  matters  of  practice  which 
depend  chiefly  on  discretion,  except  in  very  gross  cases.* 
So  that,  if  the  refusal  of  a  justice  to  allow  an  amendment 
of  pleadings  is  in  any  case  ground  of  appeal,  it  can  only 
be  so  wdien  injustice  will  result  from  refusal  of  the  appli- 
cation.^ And,  in  low^a,  under  the  code,  the  refusal  to 
allow  an  amendment  is  appealable.^  So  the  setting  aside 
of  a  default.^  And  an  appeal  was  allowed,  where  the 
opinion  of  the  judge  showed  that  the  order  asked  for  was 
refused,  not  on  grounds  which  were  within  his  discretion, 
but  because  he  thought  the  merits  of  the  case  against  the 
mover.^  So  where  a  superior  court,  having  an  absolute 
discretion  to  pronounce  on  a  matter  decided  in  the  county 
court,  gave  a  judgment,  not  in  the  exercise  of  such  dis- 
cretion, but  in  obedience  to  a  supposed  but  mistaken  prin- 
ciple of  law.** 

§  48.  The  principle  of  discretion  lies  in  part  at  the 
foundation  of  the  rule  already  considered  (§  32),  that  the 
exercise  of  a  ministerial  power  reposed  in  a  court  cannot 
be  revised  by  a  court  of  appeals ;  but  such  court  can  take 
cognizance  only  of  judicial  acts.  As  in  case  of  acts 
which  do  not  violate  any  right  defined  and  regulated 

'  Dufolt  ®.  Gorman,  1  Min.  301.  ^  Harvey  v.  Spanlding,  7  Clarke, 

2  Kiugslaud  v.  Bartlett,  28  Barb.  423. 

480.  7  Harrison  v.  Kramer,  lb.  .143. 

*  Farmers',    etc.    v.    Griffith,    2  ^  Artisans',  etc.  v.  Treadwell,  34 

Wis.  443.  Barb.  553. 

1  Oldham  v.  Stakcr,  22  Tex.  200.  ^  Powell  v.  Jopliug,  2  Jones,  400. 

5  Tattersall  v.  Haas,  1  Hilt.  5G. 


Cir.  XXI.]  APPEAL.  721 

by  hnv,  or  the  exercise  of  powers  confided  to  executive 
officers.^ 

§  49.  The  right  of  appeal  ma}'  l)e  lost  by  negligence^'  or 
by  imiver.^ 

§  50.  Thus,  in  case  of  appeal  from  a  default,  an  appear- 
ance of  the  party  is  a  waiver  of  objections  prior  to  the 
default.-*  So  an  appeal  from  a  justice  of  the  peace  gives 
the  court  jurisdiction,  though  the  party  was  not  served 
with  process.''  So  the  defendant  in  a  suit  before  a  justice 
pleaded  in  abatement,  and  the  justice  rendered  judgment 
against  him  on  the  plea.  He  then  moved  for  an  appeal, 
but  the  justice  refused  to  allow  it,  and  required  him  to 
plead  to  the  merits.  He  then  pleaded  the  general  issue, 
on  which  judgment  was  rendered  against  him.  He  then 
moved  for  an  appeal  from  both  judgments,  and  the  justice 
allowed  both  appeals.  Held,  the  defendant,  by  pleading 
to  the  merits,  had  waived  his  right  to  appeal  from  the 
judgment  upon  the  plea  in  abatement,  and  the  case  could 
be  heard  in  the  Superior  Court  only  upon  a  plea  to  the 
merits.  So  although  the  justice  had  refused  to  allow  the 
appeal,  and  had  required  the  defendant  to  plead  to  the 
merits,  as  the  justice  had  no  right  to  refuse  it,  and  could 
have  been  compelled  to  grant  it  by  a  mandamus.^ 

§  51.  And  the  general  rule  is  laid  down,  although  per- 
haps more  particularly  applicable  to  questions  of  revision 
in  matters  of  law,  that  appellate  courts  will  not  reverse, 
for  causes  not  mooted  or  objections  not   raised  in   the 

'  Gorbam  v.  Luckctt,  G  B.  :Mou.  «  Fee  v.  Big,  &c.,  13  Ohio  St.  5G3. 

140.  5  oiiio,  &c.  V.  :M'Cutobin,  27  111. 

^  Whitmore  v.  Divilbis,  10  Iowa,  J) ;  :Mnrpby  v.   Williams,   1   Pike, 

68.  37G ;    Cbildrcs   v.    Mayor,    etc.,    3 

^  IlolbrookiJ.  Coney,  25  111.  543;  Snecd,  347.   Sec  Granger  u.  Buzick, 

Champion  y.  The  Plymouth,  &c.,  3  Iowa,  570. 

42  Barb.  441.    Sec  Hay  v.  Jenkins,  •*  Prosser  v.  Chapman,  29  Conn. 

28  3I(.l.  5G4;  Pearson  v.  Lovejoy,  515. 
53  Barb.  407. 

46 


722  THE   LAW    OF   NEW    TRIALS.  [CII,  XXI. 

court  below.  A  party  is  not  at  liberty  to  rely  upon  one 
set  of  objections  before  the  court  below,  and  then  seek  to 
reverse  tlieir  judgment  uiwn  grounds  which  had  not  been 
distinctly  presented  for  their  adjudication.^(a)  Prelimi- 
nary objections,  not  affecting  the  merits,  must  affirmatively 
appear  to  have  been  taken  below,  or  they  will  not  be  con- 
sidered on  appeal.^  And  the  irregularity  of  an  appeal  is 
waived  by  an  appearance  in  the  appellate  court,^  Where 
there  is  a  fatal  objection  to  the  right  of  appeal,  the  re- 
spondent ought  to  apply  to  quash  the  appeal,  and  not  to 
wait  till  the  hearing  to  urge  such  objection  to  its 
competency.^  So  on  appeal  from  a  justice  of  the  peace, 
if  no  objection  to  the  irregularity  of  the  appeal  is  taken 
in  the  Circuit  Court,  the  Supreme  Court  will  presume  it 
to  have  been  regularly  taken. ^  So,  on  appeal  from  a 
justice's  court,  the  objection  that  the  suit  was  not  brought 
in  the  ^iroper  township  cannot  be  taken  in  the  appellate 
court,  unless  before  taken  in  the  justice's  court.''  So  an 
appeal  from  a  justice  of  the  peace  prevents  the  party 
appealing  from  objecting  before  the  higher  court,  that  the 
justice  issued  the  process  and  determined  the  case  in  a 
place  beyond  his  precinct.^  So  an  attachment  returnable 
Ijefore  a  justice  of  the  peace  cannot  be  quashed  in  the 
appellate  court,  because  the  attachment  was  not  executed 
in  the  county  in  which  it  issued;  the  objection  not  having 
been  taken  before  the  justice.^     So,  in  an  action  of  eject- 

•  Vantilburgh  v.  Sliann,  4  Zabr.  ^  Jlaxam  v.  Wood,  4  Blackf.  207. 

740.  6  Allison  v.Hedgcs,  5  Blackf.  546. 

2  Merritt  v.  Thompson,  1  Ililt.  '  Monroe  v.  Brady,  7  Ala.  59. 
550.  s  Slaton  v.  Apperson,   15  Ala. 

3  Pcarce  v.  Swan,  1  Scam.  2G6.       731. 
1  Tronson  «.  Dent,  3G  Eug.  Law 

and  Eq.  41. 

(a)  More  especially,  where  the  parties  have  mutually  stipulated  that 
no  appeal  shall  be  taken,  and  this  agreement  has  been  made  a  part  of 
the  record  by  order  of  the  lower  court;  the  Court  of  Appeals  will  refuse 
to  pass  upon  questions  thus  waived.  Towusend  v.  Masterson,  kc,  15 
N.  Y.  (1  Smith)  587. 


CH.  XXI.]  APPEAL.  723 

ment,  an  appeal  was  entered  by  one  of  the  lessors  of  the 
plaintiff.  At  the  trial,  the  counsel  for  the  defendant,  in 
his  concluding  argument,  moved  to  dismiss  the  appeal  for 
want  of  evidence  of  appeal.  Held,  such  motion  was  made 
too  late,  even  if  it  could  have  been  sustained  at  any  time.^ 
So,  in  Maryland,  a  bill  in  equity  was  filed  by  -a  legatee 
against  an  executor  and  the  sureties  upon  his  bond,  and, 
having  been  dismissed  as  to  the  sureties,  the  complainant 
appealed.  Held,  no  objection  to  the  jurisdiction  appearing 
by  the  record  to  have  been  made  in  the  court  below,  by 
the  act  of  1841,  c.  163,  the  appellate  court  was  precluded 
from  considering  that  question.^  So,  in  a  suit  for  freedom, 
a  special  verdict  found,  that  the  defendant  took  the  plain- 
tiff into  his  possession  in  another  county,  but  not  that  he 
detained  the  plaintifl"  as  a  slave  in  the  county  where  the 
suit  was  brought.  These  facts  were,  however,  alleged  in 
the  petition.  On  appeal,  held,  such  detention  was  neces- 
sary to  give  the  court  jurisdiction,  but  the  objection  could 
not  be  first  taken  in  an  appellate  court,  but  should  have 
been  pleaded  or  raised  by  rule  or  motion  before  the  jury 
were  sworn.^ 

§  52.  A  similar  rule  is  adopted  in  reference  to  the 
evidence  and  course  of  the  trial  in  the  court  below ;  more 
especially  with  regard  to  objections  not  affecting  the 
merits.  Thus  if  a  fact,  which  the  plaintiff"  probablj'  could 
have  proved,  as  for  example  a  conversion,  was  assumed 
without  objection  at  the  trial,  the  defendant  cannot  after- 
wards object  that  it  was  not  proved.^  So,  in  Maryland, 
where  advantage  is  not  taken  in  the  court  below  of  the 
insufliciency  of  a  notice  to  charge  indorsers ;  it  cannot,  by 
the  Act  of  1830,  c.  186,  be  done  on  appeal.^  So  the  filling 
up  of  a  blank  indorsement  is  a  mere  matter  of  form,  and 

•  Kinsey  v.  Sensboxigli's,  &c.,  3  Hunter o. Humphreys.  14 Giatt. 
17  Geo.  540.  287. 

2  Kuiglit  V.  Brawner,  14  Md.  1.  *  Lcc  r.  Schmiilt,  1  Hilt.  537. 

5  ManuiDg  v.  Hays,  G  Md.  5. 


724  THE    LAW    OF   NEW    TRIALS.  [CH.  XXI. 

its  omission  cannot  bo  taken  advantage  of  on  appeal, 
unless  the  objection  is  raised  in  the  court  below.^  Nor 
the  defence  of  usury,  in  an  action  on  a  promissory  note, 
after  a  motion  to  dismiss  the  case  had  been  overruled.^ 
So  where,  by  a  policy  of  insurance,  the  amount  in  case  of 
loss  was  payable  in  ninety  days;  an  objection  that  the 
suit  was  brought  before  the  ninety  days  expired,  if  not 
taken  at  the  trial,  is  not  good  on  appeal.^  So,  on  a  trial 
in  ejectment,  the  record  of  a  judgment,  in  a  scire  facais  to 
foreclose  a  mortgage,  ordering  a  sale  of  the  premises,  was 
read  in  evidence  without  objection.  The  judgment  did 
not  describe  the  premises.  Held,  the  judgment,  although 
technically  defective,  could  not  be  vitiated  in  a  collateral 
proceeding,  and  the  objection  could  not  be  raised  in  the 
appellate  court  for  the  first  time.^  ISTor,  where  a  decree 
of  partition  is  a  necessary  link  in  a  chain  of  title,  an 
objection  that  the  decree  had  not  been  recorded  in  the 
county  where  the  land  lies.^  So  if  the  good  faith  of  an 
assignment  of  wages  is  not  questioned  in  the  court  below, 
at  the  hearing  of  a  trustee  process  by  which  the  wages 
are  sought  to  \)Q  held ;  it  cannot  be  questioned  in  the  court 
above,  on  appeal.'^  So  the  plaintiflf's  title  under  a  foreign 
bankrupt  law  is  a  question  not  to  be  raised  in  the  appellate 
court  for  the  first  time.^  Nor  the  point,  that  it  does  not 
appear  that  a  corporation  had  power  to  make  the  contract 
sued  on.^  And,  on  appeal  from  a  justice,  a  plaintiff  is  not 
authorized  to  increase  the  amount  of  his  demand;  the 
same  cause  of  action  must  be  tried  anew,  and  a  new  action 
is  not  to  be  substituted.^  So  coverture  cannot  be  insisted 
on  as  a  defence  upon  appeal,  when  it  was  neither  set  up  in 

'  Scaramon    v.    Adams,    11    111.  '^  Boyclen   v.  Leonard,  2  Allen, 

575.  407. 

2  Bates  «.   Buckley,  5   Oilman,  '  Mosselman  v.  Caen,  34  Barb. 
389.                             '  CG. 

3  Bumstcad  v.  Dividend,  &c.,  2  »  Bank,  &c.  v.  EUery,  34  Barb. 
Kern.  81.  630. 

'  Bellingall  v.  Duncan,  3  Gilm.        ^  Burbage    v.   Squires,    3    Met. 
477.  (Ky.)  77. 

5  Wynnz).  Harman,  5  Gratt.  157. 


en.  xxi.J  APPEAL.  725 

answer  nor  raised  at  tlic  trial,  the  defendant  having  been 
a  feme  sole  wlicn  the  suit  was  brought.^  So  A.  sued  B.'a 
executors  for  services  rendered  B.  Answer:  1.  Not  in- 
debted. 2.  Payment.  3.  Limitations.  In  the  Supreme 
Court  the  further  objection  was  made,  that  A.  had  not 
duly  filed  his  claim  in  the  probate  office.  Held,  as  the 
objection  was  not  taken  in  the  pleadings  below,  it  came 
too  late.2  So  where  a  vessel  was  condemned  as  unsea- 
worthy  during  the  voyage ;  on  appeal  the  court  refused 
to  consider  whether  the  underwriters  were  thereby  dis- 
charged, the  question  not  having  been  raised  below.^ 

§  53.  The  same  principle  of  waiver  (as  appears  by  some 
of  the  citations  in  §  52)  is  often  applied  to  the  pleadings. 
Thus  an  objection  to  the  sufficiency  of  a  complaint  cannot 
be  first  taken  on  appeal.^  So  it  is  held,  in  Iowa,  that 
questions  as  to  the  sufficiency  of  an  indictment  do  not 
properly  arise  in  the  appellate  court,  unless  there  has  been 
a  demurrer,  or  a  motion  to  set  aside  the  indictment,  or  in 
arrest  of  judgment.''  So,  on  appeal  from  a  justice  of  the 
peace,  the  court  is  held  to  be  restricted  to  the  issue  or 
issues  of  law  or  fact  framed  below,  and  appearing  upon 
the  record.  And  where,  before  the  justice,  the  plaintift' 
omits  to  reply  to  the  demurrer  or  plea;  he  cannot,  on 
appeal,  object  to  tlie  form  of  the  plea.  So  where  a  de- 
fendant, in  a  suit  before  a  justice,  pleads  his  discharge 
under  the  bankrupt  act,  and  the  plaintifl^  goes  to  trial 
without  replying;  ho  cannot,  on  appeal,  prove  a  new 
promise,  subsequent  to  the  discharge.^  So  in  an  action 
for  taking  and  converting  timber,  where  evidence  was 
given  of  the  value  of  shingles  made  from  the  timber,  and 

•  Castree    v.    Gaville,   4    E.  D.  *  Pope  v.   Dinsmore,   29   Barb. 

Smith,  425.  367. 

2  Hardin  t.  Crist,  7  Ind.  107.  5  state  p.Burgc,  7Clarlve  (Lwa), 
See  Donohue  v.  Uenry,  4  E.  D.  255. 

Smith.  102.  6  Ross  v.  Ilamilton,  3  Barb.  009. 

3  Insurance  Co.,  &c.  ■B.Mordecai, 
22  How.  111. 


726  THE   LAW    OF   NEW    TRIALS.  [CH.  XXI. 

the  defendant  did  not  object  because  of  any  defect  in  the 
coniiilaint,  and  the  plaintitf  recovered  full  damages ;  the 
objection  cannot  be  raised  on  appeal.^  So  the  want  of 
a  declaration  in  a  writ  cannot  be  first  taken  advantage 
of  on  appeal,  after  a  trial  on  the  merits  in  the  inferior 
court.-  Nor  a  variance  between  the  pleadings  and  the 
evidence.^  ^ov  that  a  declaration  in  trespass  quare  clausum 
was  not  broad  enough  to  cover  the  locus  in  quo.*  So,  on 
appeal  from  a  justice,  if  the  parties  voluntarily  try  an 
action  of  tort,  under  pleadings  applicable  only  to  an  action 
ex  contractu  ;  it  is  a  waiver  of  all  objections  to  the  form  of 
the  action,  and  also  to  any  variance  between  the  form  of 
proceeding  before  the  justice  and  that  on  appeal.^  So 
objections  to  the  sufficiency  of  a.  libel  are  too  late,  when 
taken  in  the  appellate  court."  And  if  no  pleas  are  filed  in 
the  inferior  court,  the  appellate  court  will  not  permit  such 
pleas,  and  the  only  matter  subject  to  review  is  the  assess- 
ment of  damages.^  So  an  objection  to  a  bill  for  foreclosure, 
that  it  does  not  allege  title  in  the  mortgagor  when  he 
executed  the  mortgage,  must  be  taken  in  the  court  below.^ 
So  where  a  declaration  in  assumpsit  contained  two  counts, 
a^id  judgment  was  rendered  on  default,  and  entire  damages 
assessed  by  a  jury;  held,  the  objection  could  not  be  first 
made  in  the  Supreme  Court,  that  one  of  the  counts  was 
bad.^  And  where,  on  demurrer,  judgment  is  given  against 
the  plaintill",  and  he  asks  and  obtains  leave  to  amend,  and 
does  amend,  he  abandons  his  right  to  appeal.'°  So  a  judg- 
ment declared,  that  the  defendant  held  a  lease  for  the 
plaintiff's  use,  and  required  him  to  assign  it,  on  being 
indemnified  against  its  personal  covenants,  the  plaintiff 


'  Rice  V.  Ilollenbeck,  19  Barb.        ^  Witherspoon  v.  Wallis,  2  Ala. 

6G4  GC~  ;  IMonroe  «.  Bnuly,  7  ib.  59. 

2  Lane  v.  Roberts,  3  Gray,  514.  i  Dunn  v.  Littlelicia,  2  R.  I.  97. 

''  Barnes  v.  Pcriue,  2  Keru.  18;        ^  Patlison  v.  Shaw,  0  Ind.  877. 
20  Penn.  432.  s  Lackey  «.  Coffin,  7  Ind.  1G9. 

■«  Chandler  v.  Walker,   1   Fost.       ''  Stoddart  v.  Newman,  7  Har.  & 

282.  J.  251. 

5  Steckel  -y.Weber,  20  Penn.  432. 


en.  XXI.]  APPEAL.  727 

refunding  the  rent  and  taxes  already  paid.  The  defendant 
enforced  the  provisions  in  his  favor,  and  then  appealed 
from  the  judgment.  Held,  the  right  of  appeal  was  waived 
by  enforcing  a  part  of  the  judgment,  all  the  provisions 
being  connected  and  dependent.'  So  the  objection,  that  a 
foreign  executor  has  not  filed  letters  in  the  State,  &c., 
before  bringing  suit  under  the  statute,  must  be  made  in  the 
court  below.^  So  in  a  complaint  for  an  account,  notwith- 
standing a  previous  settlement,  on  account  of  fraudulent 
overcharges,  the  complaint  alleged  the  fraudulent  over- 
charges generally,  and  specified  some  of  them.  It  was 
not  professed  in  the  complaint  that  all  were  specified,  and 
some  were  proved  at  the  trial  that  were  not  specified,  but 
without  objection  on  that  ground.  Held,  the  objection 
could  not  be  taken  on  appeal. ^  So  it  is  too  late  to  object 
for  the  first  time  on  appeal,  that  the  case  was  tried  by  the 
court  without  a  jury.^ 

§  54.  Upon  a  similar  principle,  an  agreement  to  appeal 
gives  the  appellate  court  jurisdiction,  though  the  case 
should  properly  have  been  brought  up  on  error.^  So,  where 
parties  agree  in  open  court  that  judgment  shall  be  entered, 
and  that  one  of  them  may  appeal  without  security,  and 
such  an  appeal  is  taken,  and  various  acts  are  done  by 
both  parties  treating  the  case  as  appealed;  one  of  them 
cannot  deny  that  an  appeal  has  been  properly  taken.^  So 
a  motion  to  quash  an  appeal  from  a  justice  of  the  peace 
will  not  be  entertained,  after  the  case  has  been  referred  to 
arbitrators,  a  trial  had  upon  the  merits,  and  an  award 
filed.^  So  when  an  admission  of  record  is  made  by  counsel 
in  the   court  below,  for   the  purpose  of  obviating   the 


<  Bennett «. Van  Syckel,  18  N.  Y.  s  Ry^n  v.  Anderson,  24  111.  G53. 
(4  Smith)  481.  «  Lentilhon    v:    New    York,    3 

2  Wayland  p.  Porterfiekl,  1  Met.  Sandf.  731. 

(Ky.)  638.  '  Greenawalt     v.    Shannon,     8 

3  Sheldon  v.  Wood,  3  Bosw.  2G7.  Penn.  465. 

<  Smith  P.  Brannan,  13  Cal.  107; 
Burgess  v.  Matlock,  12  lud.  S.")?. 


728  THE   LAW    OF   NEW    TRIALS.  [CIL  XXI. 

necessity  of  }»roof ;  it  will  be  presumed  that  lie  Lad  autho- 
rity to  make  it,  aud  the  admission  cannot  be  withdrawn 
in  the  appellate  court. ^  So  where  counsel  in  the  court 
Ijelow  admits  a  letter  to  be  genuine,  the  handwriting  need 
not  be  proved  on  appeal. ^  So  a  party,  who  moves  for  a 
nonsuit  on  a  specific  ground,  cannot  on  appeal  assume  a 
new  one.^  And,  on  the  other  hand,  if  a  motion  for  a 
nonsuit  is  not  made  at  the  trial,  the  court  above  will  not 
consider  whether  the  plaintitf  should  have  been  nonsuited 
or  not.^  So,  that  nominal  defendants  were  not  formally 
detaulted,  and  that  issue  was  not  joined,  cannot  be  taken 
as  an  objection  for  the  first  time  in  the  Supreme  Court.' 

§  55.  It  is  held,  that,  as  the  appellate  court  does  not 
generally  inquire  into  matters  not  submitted  to  the  court 
below,  so  it  does  not  consider  matter  occurring  since  the 
decision.^  But  the  distinction  is  taken,  that  the  defend- 
ant, appellant,  may  plead  the  same  plea  as  before,  or  any 
subsequent  matter  of  defence,  which,  by  the  rules  of  the 
common  law,  lie  would  have  had  a  right  to  |:)lead  in  the 
court  below;  but  not  any  matter,  which  had  been  pleaded 
and  determined  in  the  court  below,  j^r/or  to  that  so  pleaded 
and  determined.^ 

§  56.  There  are  cases,  however,  where  the  doctrine  of 
waiver  is  less  rigidly  applied.  Thus  an  appearance  to  a 
void  appeal,  for  the  purpose  merely  of  moving  to  set  it 
aside,  does  not  cure  the  defect.^  So  it  is  sometimes  held, 
that  a  defence  may  be  made  on  the  trial  of  an  appeal 
from  a  justice  of  the  peace,  which  was  not  made  before 
the  justice.^     As  in  case  of  a  discharge  in  bankruptcy. '° 


'  Montgomery    v.    Givban,     24  ^  Denny  v.  Moore,  13  Ind.  418. 

Ala.  568.  6  Martiii's,  &c.,  23  Penn.  488. 

2  Ovcrholtzer  v.  McMicliael,   10  ^  Wickwire    v.   The    State,    19 
Penn.  139.  Conn.  477. 

3  IMatecr  v.  Brown,  1  Cal.  231.  »  Seymour  v.  Judd,  2  Comst.  464. 
'  Rockingham,  &c.  v.  Claggctt,  s  Hall  v.  Mills,  11  Miss.  215. 

9  Post.  292.  10  McCary  v.  Mabc,  7  Ala.  356. 


CII.  XXI.]  APPEAL.  729 

So  the  defendant  may  prove  his  account  l)j  his  own  oath, 
as  an  offset,  though  he  did  not  make  or  otter  to  make 
such  defence  before  the  justice.'  And,  in  a  suit  before  a 
justice  for  the  value  of  rails  converted,  the  defendant  may 
show,  on  appeal,  that  the  land  on  which  the  rails  were 
cut  belonged  to  himself.^  So,  that  the  petition  does  not 
show  a  right  to  recover  is  an  objection  which  may  be 
taken  at  all  stages,  under  (Kentucky)  Code,  §  123,  whether 
relied  upon  below  or  not.^  And  a  motion  to  dismiss  a 
case,  for  want  of  jurisdiction  in  the  justice  before  whom 
it  was  commenced  and  tried,  may  be  first  made  in  the 
court  above,  on  appeal."'  So,  on  the  other  hand,  when  the 
appellate  court  has  no  jurisdiction,  a  joinder  in  error  is 
not  a  waiver.^  So  it  is  held  that  an  appeal  lies  from  a 
decision  on  an  agreed  statement  of  facts,  in  a  criminal  as 
well  as  in  a  civil  proceeding.'' 

§  57.  Somewhat  upon  the  principle  of  waiver,  there  is 
held  to  be  no  right  of  appeal  in  case  of  trial  by  the  court.^ 
But  an  appeal  lies  from  judgment  by  confession.^  Or  by 
consent.^ 

§  58.  Upon  the  trial  of  an  appeal,  it  may  be  shown  that 
a  written  instrument,  wliich  was  the  basis  of  the  action, 
was  offered  in  evidence  in  the  court  below,  and  that  the 
justice  neglected  to  file  it,  and  then  it  may  be  introduced.'" 

§  59.  It  is  a  rule  analogous  to  that  of  waiver,  or  perhaps 
an  extended  application  of  the  same  rule ;  that  an  appeal 
must  generally  be  founded  upon  matter  of  substance,  not 
of  mere /or?/i;  and  is  treated  rather  liberally  than  techni- 

1  Cliirk    V.   Howard,    10    Ycrg.  ^  Keller  v.  State,  13  Md.  ?.23. 
250.  ^  Bass  v.  Haverhill,  &c. ,  10  Gray, 

2  Wilson  V.  Petty,  21   Mis.  417.  400. 

3  Walters?).  CUinn,  1  Met.  (Ky.)  ^  Troxcl  v.  Clarke,  9  Iowa,  201. 
499.  9  Wassen  v.    Iletlncr,    1:J    Ohio 

*  Elder  v.  Dwight,  &c.,  4  Gray,     St.  573. 
201.  '"  Eggleston  v.  Colis,  10  Iowa, 

5  Johnson  v.  Fort,  30  Ala.  78.         554. 


730  THE   LAW   OF   NEW    TRIALS.  [CII.  XXI. 

cally.^     It  is  held  that  no  appeal  will  lie  from  an  order  of 
court  which  is  merely  irregular.^ 

§  GO.  Wliere  the  law  gives  an  appeal,  the  courts  are 
authorized  to  supply  deficiencies  in  the  provisions  pre- 
scribing the  practice.'  Thus,  as  has  been  seen,  a  variance 
which  is  mere  matter  of  form,  and  has  nothing  to  do  with 
the  substance  of  the  action,  in  causes  before  justices,  is 
not  a  fatal  variance.  Hence,  under  a  quantum  meruit^  a 
plaintiff  was  allowed  to  recover  on  a  special  contract.^  So 
a  defect  in  the  summons,  in  a  case  before  a  justice  of  the 
peace,  cannot  be  taken  advantage  of  in  an  appeal.^  So 
error  in  the  sentence  of  a  justice  of  the  peace  is  no  ground 
for  dismissing  the  complaint  in  the  appellate  court."  So, 
on  the  trial  of  an  appeal  from  a  justice,  in  a  criminal 
case,  if  the  proof  corresponds  with  the  comi:)laint,  the 
jury  may  presume  the  offence  to  be  the  same  as  that 
found  before  the  justice,  in  the  absence  of  evidence  to  the 
contrary.^  So  in  cases  of  conflict  of  testimony,  where  both 
courts  below  have  concurred  in  the  decision  of  questions 
of  fact,  the  appellate  court  will  not  reverse  that  decision, 
if  the  testimony  disclosed  by  the  record  is  in  law  suffi- 
cient to  support  it.8  So,  on  bill  and  answer  referred  to  a 
master  in  chancery,  the  parties  amicably  arranged  their 
differences,  and  discontinued  the  proceedings  in  equity, 
before  the  filing  of  the  report,  which  was  returned  with 
the  testimony,  but  without  an  account.  The  fees  of  the 
master  being  excepted  to,  the  court  confirmed  the  report, 
and  ordered  them  to  be  paid  on  or  before  a  given  time  by 
the  complainant,  who  appealed  from  that  decree.  Held, 
the  court  below  were  the  best  judges  of  the  amount  due, 
and,  where  it  appeared  that  the  master  had  much  labor 

'  Jol)  ».  Harlan,  13  Ohio,  48.-) ;  »  Warne  «.  Baker,  34  111.  351. 

Brownell  v.  Winnie,  39  N.  Y.  (3  *  MoXz  v.  Eddy,  31  Mis.  13. 

Tiffa.)    400;    Williston  ■».  Fisher,  ^  Hill  v.  White,  1  Ala.  570. 

88  111.  43.  ^  Com.  v.  Tinkham,  14  Gray,  13. 

2  Hungcrford  v.  Gushing,  3  AVis.  ^  Com.  v.  Burke,  ib.  81. 

416,  8  Ship  Marcellus,  1  Black,  414. 


CII.  XXI.]  APPEAL.  731 

ill  investigating  the  case,  the  order  of  the  court  below 
would  not  be  interfered  with,  even  if  it  were  a  final 
decree.^ 

§  61.  Questions  oi  jurisdiction  often  arise,  whether  re- 
lating to  that  of  the  court  above  or  of  the  court  below.(a) 
AYant  of  jurisdiction  in  the  District  Court  of  the  United 
States,  where  the  cause  was  commenced,  is  a  proper  matter 
for  an  appeal,  and  therefore  to  be  argued  when  the  case  is 
reached,  and  not  upon  a  motion  to  dismiss.^  It  is  for  the 
appellant  to  show  afiirmativelj  that  the  court  above  has 
appellate  jurisdiction.  "Where  the  declaration  contains 
several  counts,  and  there  is  nothing  upon  their  face  which 
shows  that  the  sum  in  demand  exceeds  ten  dollars,  but 
each  count  concludes  with  an  ad  damnum  of  ten  dollars, 
and  the  counts  are  of  the  same  nature,  and  describe  appa- 
rently the  same  contract;  the  court  (in  Vermont)  should 
not  intend  that  they  are  for  different  causes  of  action,  but 
rather  the  contrary,  and  should,  in  the  absence  of  any 
proof  except  what  is  shown  by  the  declaration,  dismiss 
the  suit.^ 

§  62.  It  is  sometimes  held,  that,  where  a  limited  tribunal 
exercises  jurisdiction  which  does  not  belong  to  it,  its  deci- 
sion amounts  to  nothing,  and  requires  no  appeal.'*  That 
the  jurisdiction  of  the  upper  court  depends  upon  the  pre- 
vious jurisdiction  of  the  lower  court ;  and,  if  that  fail, 
the  appeal  will  be  quashed.^ 

'  Tottcn's,  &c.,  40  Penn.  885.  110;   Baltimore  v.  Porter,  18  :Md. 

2  Nelson  v.  Leland,  32  How.  48.  284. 

3  Persons  v.  Centre,  &c.,  20  Vt.  *  Bnrl)age  v.  Squires,  3  Met. 
170.  (Ky.)  77. 

»  Osgood  V.  Thurston,  23  Pick. 

(«)  An  appeal  is  said  to  be  proper  in  the  case  of  jurisdictional 
defects,  as  in  those  of  mere  irregulariUj.  Fitch  v.  Devlin,  15  Barb.  47 ; 
Poyscr  V.  IMnrray.  6  Port.  (Ind.),  35 ;  Blecker  v.  St.  Louis,  &c.,  30  Mis. 
Ill ;  lladlcy  V.  Duulap,  10  Ohio  N.  S.  316. 


732  THE   LAW    OF   NEW    TRIALS.  [CIL  XXI. 

§  63.  Whatever  may  be  the  technical  doctrine  upon  this 
point,  tlie  appellate  court  should  dismiss  the  suit,  if  the 
court  below  had  not  jurisdiction.^  The  former  cannot 
obtain  jurisdiction  by  the  appeal,  notwithstanding  a 
statement  of  facts  has  been  agreed  to.^  Nor  although  it 
might  have  had  original  jurisdiction.^  The  superior  court 
will  not  try,  on  appeal  from  a  justice  of  the  peace,  a  case 
not  within  his  jurisdiction,  though  within  theirs.  The 
transcript  must  show  jurisdiction."  And  a  motion  to  dis- 
miss may  be  made  at  a  term  subsequent  to  the  entry.'^ 

§  64.  But  evidence  must  be  heard,  before  it  can  be  de- 
termined that  a  justice  of  the  peace  had  not  jurisdiction.^ 
And  the  court  above  has  jurisdiction  on  appeal  from  a 
justice  of  the  peace,  where  the  justice  had  jurisdiction, 
however  defective  the  service  may  have  been.  And,  by 
taking  an  appeal,  the  appellant  gives  jurisdiction,  even 
where  there  was  not  service.^  So,  by  pleading  to  the 
merits,  it  is  held  that  the  appellant  waives  exceptions  to 
the  jursdiction  of  the  court.^ 

§  65.  Where  the  justice  had  no  jurisdiction,  it  is  held 
that  the  court  may  give  judgment  against  the  original 
plaintifl'  for  costs.^ 

§  66.  The  jurisdiction  of  the  justice  is  to  be  determined 
in  the  appellate  court,  not  by  the  amount  of  the  recovery, 
but  by  the  amount  legally  due  or  actually  claimed  at  the 
time  judgment  was  rendered.^" 

§  67.  Where  an  appeal  from  the  judgment  of  the  Court 
of  Common  Pleas,  on  a  plea  in  abatement,  was  entered  in 

>  Sec  Ilough  V.  Leonard,  13  111.  °  Swiiigley    v.    Uayncs,    22   111. 

456.  214. 

2  Hatch  V.  Allen,  27  Maine,  85.  ^  Ibid. 

3  Aulanier  v.  Governor,  1   Tex.  ^  g^aw  v.  Mosen,  8  ]\rich.  71. 
653.  9  McKitriek   v.   Peter,   5    Dana, 

*  Barr  v.  Logan,  5  ITarring.  53.       587  ;   Bassett  v.  Oldham,  7  lb.  168. 
5  Ashuclot,  &c.   V.  Pearson,  14       '"  Crabtrec  v.  Cliatt,  23  Ala.  181. 
Gray,  531. 


CII.  XXL]  APPEAL.  too 

theSui)rcnic  Court,  and  dir^iiiissed  tor  want  of  jurisdiction; 
held,  the  Court  of  Common  Pleas  might  order  the  case  to 
be  brought  forward  upon  its  docket,  on  motion  of  the 
appellee,  and  might  proceed  to  the  final  disposition  of  the 
action.^ 

§  68.  An  amendment  cannot  be  allowed,  if  the  jurisdic- 
tion of  either  court  would  be  affected  thereby.- 

§  G9.  Payment  of  fine  and  costs  docs  not  prevent  an 
appeal  on  the  ground  that  the  court  had  no  jurisdiction.^ 

§  70.  Where,  on  appeal,  the  judgment  is  for  an  amount 
exceeding  the  jurisdiction  of  the  justice,  it  must  be  re- 
versed, unless  the  plaintiff  will  remit  the  excess,  and  pay 
the  costs  of  appeal.^ 

§  71.  With  regard  to  the  effect  of  an  appeal,(r/)  it  is  the 
general  rule,  that  a  judgment,  from  which  an  appeal  has 
been  granted,  is  no  longer  in  forcc.^  An  appeal,  properly 
perfected  by  bond,  &c.,  suspends  the  judgment  and  all 
proceedings   to  enforce   it.\b)     Thus   an  action  of  debt 

'  Browning  t!.  Bancroft,  8  Met.  (rT.  S.),  G17;   Suggs   v.   Suggs,  1 

278.  Overt.  2  ;  Stewfirt  v.  Stringer,  41 

2  Osgood  i).  Green,  10  Fost.  210.  Mis.  400;    Davis   v.  The   Seneca, 

3  State  w.Rollet,  6  Clarice  (Iowa),  Gilpin,  "A\  Stone  v.  Spillman,  16 
535  Tex.  4o2  ;  Kinbrougli  v.  Mitchell, 

*  Dnnbar  v.  Bittle,  7  Wis.  14:5.  1   Head,   oS!) ;    Gale  v.  Butler,   35 

5  Marshall  v.  Lester,  2  Murph.  Term.   44!)  ;  Tarbox  v.  Fisher,  50 

227.  Maine,  2B0  ;    Hunter  v.   Cole,  49 

s  Bassett    v.    Daniels,    10    Ohio  Maine,  55G. 


(a)  See  Graham  v.  Merrill,  5  Cold.  622 ;  Freeman  v.  Henderson,  ib. 
G47. 

(&)  And  in  some  cases  this  condition  is  dispensed  with.  (Sec  p.  590.) 
Thus  the  defendant,  in  a  suit  for  the  possession  of  a  factory,  appealed 
from  an  order  appointing  a  receiver,  and  filed  his  appeal  bond.  The 
court  below  refused  to  accept  a  bond  to  stay  proceedings,  under  the 
order  appealed  from,  under  the  (Wisconsin)  Act  of  1859,  and  directed 
the  receiver  to  proceed.     Held,  iu  the  absence  of  any  special  law  re- 


734  THE    LAW    OF   NEW    TRIALS.  [CH.  XXI. 

cannot  be  maintained  upon  it.^  ISTor  can  it  be  pleaded  as 
r-es  judicata.^  So  an  appeal  from  an  order  dissolving  an 
injunction  suspends  the  order,  and  continues  the  in- 
junction, and  the  chancellor  cannot  allow  the  party  to 
disregard  it.^  So,  while  an  appeal  is  pending,  every  pro- 
ceeding under  the  original  judgment  is  void.^  And  the 
court  will  not,  on  certiorari,  affirm  or  reverse  the  judg- 
ment.^ So  an  appeal,  though  after  transcript  iiled  and 
execution  issued,  supersedes  the  execution.^  "  A  case  by 
appeal  comes  to  the  higher  court  as  an  original  case, 
unaffected  by  the  pleadings  below,  except  as  to  the  pre- 
liminary pleas  that  may  have  been  waived."^  And  the 
lower  court  has  no  longer  jurisdiction  over  the  case,  so 
that  it  can  amefid  its  record.^  Upon  the  same  ground,  no 
objection  can  be  made  to  the  judgment  for  any  cause.^ 
So,  where  commissioners  continue  in  the  execution  of  a 
decree,  after  an  appeal  taken  and  process  served  on  them, 

1  Atkins  «.  Wyman,  45  Maine,  «  Sholts  v.  Judges,  &c.,  2  Cow. 
399.  50G. 

2  Byrne  «.  Prather,  14  La.  An,  '  Per  Button,  J.  Phelps ».  Hurcl, 
653.  31  Conn.  44G. 

3  Penrice  v.  Wallis,  37 Miss.  173.        »  McGlaughlin  v.  O'Rourke,  13 
1  Thompson  ». Thompson,  Coxe,     Iowa,  459. 

159.  9  Bixby  v.  Harris,  6  Post.  125. 

6  White  V.  McCall,  Coxe,  93. 

quiring  special  bonds  before  an  appeal  can  operate  to  stay  proceedings, 
all  appeals,  in  all  classes  of  cases,  when  duly  entered  and  perfected, 
operate  necessarily  as  a  stay  of  proceedings  under  the  order  appealed 
from.    Hudson  v.  Smith,  9  Wis.  122. 

St.  1859,  c.  139,  I  2,  providing  that  no  appeal  from  an  intermediate 
order  shall  stay  proceedings,  unless  a  bond  conditioned  to  pay  the  final 
judgment  be  filed,  applies  to  suits  for  the  possession  of  property,  as  well 
as  in  the  case  of  a  suit  for  the  recovery  of  money.  Held,  that,  where  a 
proper  bond  to  abide  the  judgment  had  been  filed  in  a  suit  as  above,  an 
order  staying  proceedings  was  proper.  And,  upon  refusal  of  the  Circuit 
Court,  as  above,  to  fix  the  amount  of  the  bond  and  stay  proceedings,  the 
appellate  court,  on  an  ex  parte  application,  fixed  the  amount  and  ordered 
the  stay.  lb.  An  appeal  from  an  order  vacating  a  judgment  leaves  the 
judgment  and  execution  in  force.     Murphy  v.  Merritt,  63  N.  C.  502. 


CII.  XXI,]  APPEAL.  735 

they  are  guilty  of  a  contempt  ol"  the  appellate  coart,  and 
their  acts  are  null  and  void  as  to  the  parties.^ 

§  72.  And  this  effect  docs  not  depend  upon  the  entry  of 
the  appeal.2  Thus  an  appeal  rightly  taken,  but  not  en- 
tered in  the  court  above,  will  dissolve  an  attachment.^ 
And  an  action  cannot  be  sustained  upon  the  judgment.^ 
If  not  entered  in  the  court  above,  or  in  case  of  a  nonsuit, 
the  court  above  must  make  a  new  judgment  or  decree.^ 
The  appellee  may  make  the  judgment  appealed  from,  the 
appeal,  and  the  laches  of  the  appellant,  a  foundation  for 
a  new  judgment  in  the  appellate  court,  which  may  be 
there  executed.'^  The  appellant,  though  a  defendant,  is 
bound  to  prosecute  his  appeal.^ 

§  73.  But,  on  the  other  hand,  partly,  no  doubt,  as  the 
result  if  not  the  direct  provision  of  express  statutes,  it  is 
held  that  the  only  effect  of  an  appeal  is  to  stay  execution 
upon  the  judgment.  In  all  other  respects,  the  judgment, 
until  annulled  or  reversed,  stands  binding  upon  the  parties 
as  to  every  question  directly  decided.^  So  the  lien  of  a 
levy  on  execution  is  not  destroyed.^  So,  under  the  'New 
York  Code,  §§  339,  342,  an  appeal  from  a  judgment, 
though  accompanied  with  a  proper  undertaking  for  pay- 
ment of  the  judgment  and  costs,  does  not^;er  se  supersede 
an  execution  previously  levied  on  personal  property.^"  So 
granting  an  appeal  does  not,  ipso  facto^  suspend  the  judg- 
ment, in  Kentucky,  nor  prevent  proceedings  for  its  en- 
forcement.^^    Nor  does  an  appeal  vacate  the  liun  of  the 

1  McLaughlin  ».Janney,  6  Gratt.  ^  Paine  v.  Cowdin,  17  Pick.  142; 
G09.  Davis  v.  Cowdin,  20  ib.  510. 

2  Camplx'll  V.  Howard,  5  Mass.  ^  5  Mass.  376;  U.  S.  v.  Fremont, 
37G.    See  also  Penhallow  v.  Doane,  18  How.  30. 

3  Dall.  54;  Keenv.Turucr,  13  Mass.        ">  Lum  v.  Price,  1  llarr.  19o. 
266.  ^  Nill  V.  Comparet,  lU  Ind.  107. 

3  Snydam  ?).  Huggeford,  23  Pick.  ^  jMoore  v.  Rittenliouse,  15  Ohio 
465.  St.  310. 

^  Curtiss  V.  Beardsley,  15  Conn.  '»  Cook  v.  Dickerson,  1  Duer,679. 
518  ;  Felton  v.  "Weyman,  10  Peuu.  "  Freeman  v.  Pattou,  1  J.  J. 
70.  Marsh.  193. 


736  THE  LAW  or  new  trials.  [cii.  xxi. 

juilgmoiit,  but,  on  the  contrary,  extends  it  over  property 
acquired  pending  the  appeal.^  And,  upon  the  ground 
tliat  an  appeal  does  not  vacate  the  verdict  and  judgment 
api)ealod  from,  the  plaintift'  cannot  become  nonsuit.-  An 
invalid  appeal  of  course  leaves  the  case  as  it  stood  previ- 
ously.3     (-See  §  75.) 

§  74.  The  dismissal  of  an  appeal  is  equivalent  to  a  regu- 
lar, technical  affirmance  of  the  judgment  of  the  court 
below,  so  as  to  entitle  the  party  to  claim  a  forfeiture  of 
the  bond  and  have  his  action  therefor.^ 

§  75.  If  an  appeal  be  granted  where  it  is  not  given  by 
law,  or  be  irregularly  or  informally  taken,  and  dismissed  ; 
it  is  void  ab  initio,  the  judgment  is  in  force,  and  execu- 
tion may  issue  upon  it,  as  if  there  w^ere  no  appeal.^ 
An  appeal,  without  a  sufficient  undertaking,  does  not  sus- 
pend the  right  to  issue  execution,  but  takes  away  all  right 
to  amend  the  judgment.^  (See  p.  587.)  In  such  case  the 
judgment  cannot  be  affirmed.^  So,  if  an  appeal  is  im- 
properly perfected  and  for  that  reason  dismissed,  the  court 
have  no  jurisdiction  to  render  judgment  in  favor  of  the 
plaintiff,  for  the  amount  recovered  before  the  justice.* 
So  the  defendants,  in  an  action  of  trespass  before  a  justice 
of  the  peace,  pleaded  in  abatement  the  defective  service 
of  the  plaintiff's  writ,  to  which  plea  the  latter  demurred. 
The  court  sustained  the  demurrer,  and  ordered  the  de- 
fendants to  answer  over,  which  they  refused  to  do,  where- 
upon judgment  w^as  rendered  in  favor  of  the  plaintiff. 
The  defendants  then  appealed  from  the  judgment  upon 

'  Sfiible  t).  "Walpole,  Wright,  447;  ^  Loveland  v.  Burton,   3  Verm. 

Curtis  V.  Root,  28  111.  367 ;  Steck-  521  ;  Com.  v.  Messenger,  4  Mass. 

racsser  i).  Graham,  10  Wis.  87.  402;  Campbell   v.  Howard,   5   ib. 

2  Williams  v.  Jlizell,  10  Ircd.  370  ;  Latham  v.  Edgerton,  !)  Cow. 
274  ;  ?,  Za1)r.  201.  227. 

3  Com.  V.  Dunham,  22  Pick.  12  ;  ^  Br.yan  v.  Berry,  8  Cal.  130. 
Com.  V.  Crawford,  12  Cush.  271.  ^  Bol)bins  v.  Appleby,  2  N.  II. 

*  McConnel  v.  Swailes,  2  Scam.     223. 
571.  ^  Shifl"  V.  Brownell,  4  Wis.  285. 


CH.  XXI.]  APPEAL.  737 

the  demurrer  to  the  Superior  Court.  Held,  such  appeal 
did  not  vacate  the  final  judgment  of  the  justice,  and  the 
Superior  Court  could  take  no  cognizance  of  the  case.^ 

§  7G.  By  a  peculiar  practice,  in  New  Hampshire,  an 
appeal  from  the  Court  of  Common  Pleas  to  the  Supreme 
Court  vacates  the  judgment,  hut  leaves  the  case,  with  all 
its  incidents,  its  pleadings,  and  evidence,  unaftected.^ 

§  77.  The  judgment  of  the  appellate  court  will  be  con- 
clusive until  reversed,  although  the  appeal  in  the  case  was 
improperly  taken  and  prosecuted.^ 

§  78.  In  general,  subject  to  the  rules  as  to  icaive?-,  an 
appeal  re-opens  the  whole  case.^(a)  It  involves  a  general 
right  to  have  a  full  new  trial,  in  all  matters  of  law  and 
fact,  in  the  court  appealed  to.^  A  case  is  to  be  heard  in 
the  appellate  court,  as  if  no  sentence  or  judgment  had  been 
pronounced  below,  such  sentence,  &c.,  being  altogether 
suspended  by  the  appeal.*'  The  case  comes  before  the 
court,  not  for  revision,  as  on  a  writ  of  error,  but  for  trial 
de  novo  on  the  merits,  and  the  court  should  give  judgment 


'  Blackman  v.  Beha,  24  Conn.  Tiffa.)  494.     See  So.  Life,  &c.  v. 

331  Cole,  4  Flor.  359;  Catlin  v.  Henton, 

2  Stalbird  v.  Beattie,  36  N.  H.  455.  9  Wis.  476. 

3  Atkins  V.  Wynian,  45  Maine,  ^  Com.  «.  Ricliards,  ITPick.  295; 
399.  Com.  V.  O'Neil,  6  Gray,  345. 

1  Brancli^J.Dicli,  1401iioSt.551;  ^  Yeaton  ».  U.  S.,  5  Crancli,  281; 

Robinson  v.  Raynor,  28  N.  Y.  (1  Tlie  Venus,  1  Wlicat.  113. 

(a)  "  The  plaintiff  by  his  appeal  opened  the  whole  case."  Richards  v. 
Smith,  9  Gray,  316.  In  Missouri,  the  bestowal  of  mere  appellate  power 
on  the  Circuit  Courts  does  not  authorize  them  to  try  causes  de  novo. 
An  appeal  gives  no  more  power  than  would  a  writ  of  certiorari.  Lacy 
V.  Williams,  27  Mis.  280.  See  Com.  v.  Emmons,  98  Mass.  6 ;  Wolfe  v. 
Security,  39  N.  Y.  49;  Gough  v.  Manning,  26  Md.  347  ;  Young  v.  Mer- 
tens,  27  ib.  114;  Lane  v.  Lantz,  ib.  217;  Morrison  v.  Hammond's,  ib. 
604 ;  Everett  v.  State,  28  ib.  190 ;  List  v.  Pumphrey,  3  W.  Ya.  672 ; 
Persch  v.  Quiggle,  57  Penn.  247 ;  Sledge  v.  Bhun,  63  N.  C.  374. 
47 


738  THE    LAW    OF    NEW    TRIALS.  [CIL  XXI. 

on  tlie  merits,  regardless  of  defects  in  the  justice's  judg- 
iiicnt.* 


§  79.  Partly  upon  this  ground,  if  the  law,  on  which  a 
judgment  was  founded,  be  afterwards  repealed,  the  appel- 
late court  must  set  the  judgment  aside,  though  right  at 
the  time.^ 

§  80.  It  is  held  that  the  judgment  will  not  be  reversed 
on  default  of  the  appellee ;  it  must  be  examined  on  the 
affidavits  or  return.^  It  is  error  for  the  court  to  affirm  the 
judgment  without  hearing  evidence.  A  trial  cannot  be 
had  on  the  transcript  of  the  justice,  without  other  proof.'* 
So  the  court  does  not  review  or  revise  the  decision  of  the 
iustice,  but  investigates  the  case  as  if  it  had  never  under- 
gone a  previous  investigation.'  And,  on  a  judgment  of 
affirmance,  a  mere  entry  that  the  court  affirm  the  judg- 
ment below  is  not  sufficient;  judgment  should  be  rendered 
for  a  specific  sum.^  So,  on  appeal  from  a  justice  of  the 
peace,  the  rulings  of  the  justice  cannot  be  revised.'^  The 
court  cannot,  for  error  of  law  in  the  trial  below,  nonsuit 
the  plaintiff,  or  reverse  the  judgment,  but  must  retry  the 
cause  on  its  merits,  and  give  such  judgment  as  the  justice 
ought  to  have  given.^  And  upon  the  ground,  that,  on 
appeal  from  a  justice  of  the  peace,  the  court  is  required 
by  statute  to  try  the  case  de  7iovo,  and  to  give  judgment 
according  to  its  justice  and  equity,  &c. ;  it  should,  in  a  case 
where  the  })laintilf  could  maintain  trespass  or  assumpsit, 
disregard  the  form  of  the  warrant,  designating  the  pro- 
ceeding as  an  action  of  debt.^     So  also  any  other  defects 


'  Allen  V.  Wood,  1  Head,  436.  ^  "Waterman  v.  Bristol,  1  C.ilm. 

2  U.  S.  V.  The  Peggy,  1  Crancli,  593;  Tiiulall ». Meeker,  1  Scam. 137. 
110 ;  United  fStatcs  v.  Preston,  3  ^  Doremus  v.  Howard,  3  Zabr. 
Pet.  58.  390. 

3  Bellony  v.  Alexander,  1  Sandf.        ^  Harper  v.  Baker,  9  Mis.  116. 
784.  ^  Vannov  v.  Givens,  3  Zabr.  201. 

^  Shook  V.  Thomas,  21  111.  87.  '■*  CaUerlln  v.  Spinks,  16  Ala.  467. 


en.  XXI.]  APPEAL.  739 

in  the  warrant,  capias^  summons,  or  otlier  proceedings  of 
the  justice.^ 

V  §  81.  In  general,  the  same  case  is  to  be  retried,"  and  only 
the  merits  of  the  case.^  The  court  above  .should  not  dis- 
miss it,  on  account  of  irregularities  in  the  justice's  pro- 
ceedings.* The  question  of  identity,  however,  depends 
somewhat  upon  the  pleadings.  Thus  at  the  trial,  in  the 
court  above,  of  an  action  brought  before  a  justice  of  the 
peace  upon  a  bond  for  the  prison  limits,  the  plaintiff  may 
prove  any  act  of  escape  specified  in  his  bill  of  particulars 
filed  before  the  justice,  although  not  relied  upon  at  the 
trial  thcre.^ 

§  82.  But  an  appeal  does  not  re-open  a  question  of 
amendment.^  So,  as  has  been  already  seen,  in  case  of 
appeal  on  facts  agreed^  no  other  questions  can  be  raised.^ 
So  an  appeal  does  not  apply  to  an  order  subsequent  to 
the  judgment  concerning  the  execution  sale.^  And  it  is 
sometimes  held,  under  local  statutes,  that  the  case  must 
be  retried  upon  the  same  evidence.^ 

§  83.  And  the  general  rule  is  laid  down,  that  the  form 
of  action  may  be  sometimes  changed;  the  cause  of  action, 
never. ^°  The  proceedings  are  de  novo  only  as  to  the  decla- 
ration ,  pleadings,  and  evidence.^^  Thus  the  cause  of  action 
must  exist  at  the  commencement  of  the  suit,  and  cannot 
be  varied  by  subsequent  circumstances.^^  Nothing  can  be 
recovered  on  appeal  which  could  not  be  recovered  before 


'  Hart  V.  Turk,  15  Ala.  675;  Goss  ^  Diedriclis  v.  Stomach,  9  AVis. 

V.  Davis,  21  ib.  479.  548. 

2  Stuart  V.  Biusse,  3  Bosw.  Go7.  ^  Devin  v.   Patchin,  2G   N.    Y. 

3  State  V.  Wilson,  7  N.  H.  543.  (12  Smith)  441. 

*  Maltock  V.  King,  23  ]\Iis.  400.  '°  CahvcU  v.  Thompson,  1  Rawle, 

5  Kennedy  v.  Gooding,  7  Gray,  370. 

417.  "  O^A'en  -o.  Shelhamer,  3  Binn.  45. 

6  Parker  v.  Baker,  43  N.  H.  35.  '^  Ibid. ;  IMcLaughlin  v.  Parker,  3 
'  Johnson  v.  Stewart,  11  Gray,  S.  &  R.  144  ;  Bcchtol  v.  Cobaugh, 

181.  10  S.  &  K.  131. 


740  THE    LAW    OF   NEW    TRIALS.  [CH.  XXI. 

tbe  justice,  except  the  intermediate  interest.^  And,  on 
the  other  hand,  in  Xew  York,  where,  in  order  to  move 
for  a  new  trial,  or  for  the  purposes  of  appeal,  a  party  lias 
made  and  served  a  case  ;  the  adverse  party  has  no  right  to 
make  a  new  case,  and  serve  it  as  a  proposed  amendment 
by  way  of  substitution.^  So,  in  a  criminal  case,  only  the 
same  oftence  can  be  tried,  wdiicli  was  tried  in  the  court 
below.3 

§  84.  The  course  of  proceeding  in  the  appellate  court 
seems  to  be  predicated  upon  the  prevailing  theory  that 
such  court  has  full  control  of  the  case,  as  an  original 
action.  Thus  it  is  held  that  a  party  may  succeed  in  any 
form  of  action,  if  the  justice  of  the  peace  had  jurisdiction 
of  the  subject-matter.^  So  the  court  may,  in  its  discretion, 
allow  amendments,  not  only  of  the  appeal  bond,  but  also 
of  the  original  accounts  filed  in  the  case.  Either  party 
may  file  additional  accounts,  upon  such  terms  as  the  court 
may  direct.  Such  accounts,  however,  when  filed  by  the 
plaintiif  and  proved,  and  the  ofisets  deducted,  must  not 
exceed  the  original  demand  indorsed  on  the  back  of  the 
process.^  So,  in  Vermont,  where  an  action  upon  a  promis- 
sory note  is  appealed,  the  plaintifi"  may,  by  the  rules  of 
court,  file  a  new  declaration ;  and  he  may  file  it  in  the 
form  of  a  count  for  money  had  and  received,  and  ofier 
any  evidence  which  would  have  been  competent  under  a 
count  declaring  specially  upon  the  note.*'  So,  under  the 
general  power  to  allow  amendments  of  the  process  and 
proceedings  in  court,  if,  in  an  action  of  debt  upon  a 
judgment  before  a  justice  of  the  peace,  the  judgment  is 
described  erroneously  by  giving  a  wrong  initial  of  the 
justice's  name,  and  by  stating  the  aggregate  amount  of 

'  Moore  v.  "Wait,  1  Binn.   219  ;  ^  "Waterman  v.  Bristol,  1  Gilm. 

Owen    V.    Slielhamer,    3    ib.    45  ;  593.    See  SaAvyer  v.  Kane,  47  N.  H. 

Wright  V.  Guy,  10  S.  &  R.  227.  173;  McQuade  v.  U'Neil,  15  Gray, 

2  Stuart  V.  Binsse,  3  Bosw.  G57.  52;  Footer.  Roberts,  7 Itob.  (N.Y.) 

3  Com.  V.  Blood,  4  Gray,  31.  17. 

'  Swingley  v.  llayucs,  21  111.  214.        <=  Fletcher  v.  Blair,  20  Vt.  124. 


CH.  XXI.]  APPEAL.  741 

the  debt  and  costs,  instead  of  reciting  each  of  them  sepa- 
rately; the  plaintiff,  after  the  action  has  been  appealed, 
may  jfile  a  new  declaration.^  So,  on  the  trial  of  an  appeal, 
the  defendant  it  not  restricted  to  the  set-off  relied  on 
before  the  justice  of  the  peace.^  So,  where  the  defendant 
appeals  from  an  award,  the  plaintiff  may  recover  for  a 
cause  of  action  which  was  not  mentioned  before  the  arbi- 
trators, when  the  evidence  is  admissible  under  the  original 
pleadings.3  So,  in  an  action  against  a  connecting  railway 
company  for  a  loss  by  lire,  there  was  a  verdict  for  the 
plaintiff.  A  rule  to  enter  a  nonsuit  was  granted,  upon  the 
ground  that  the  defendants  received  the  goods  on  condition 
that  they  were  not  liable  for  loss  by  lire.  Held,  it  was 
open  to  them,  on  appeal  in  the  House  of  Lords,  to  deny 
that  there  was  any  contract  between  them  and  the  plain- 
tiff.* And  a  decree,  exceeding  the  power  of  the  court  in 
one  distinct.particular,  may  be  amended  in  the  appellate 
court,  and  then  affirmed.^ 

§  85.  So,  although  the  cause  of  action  must  appear  to 
be  the  same,  yet,  where  the  transcript  stated  that  the  suit 
was  on  a  promissory  note,  and  on  the  appeal  the  evidence 
was  of  a  sealed  instrument,  or  bill  obligatory,  for  the  sum 
stated  in  the  transcript ;  it  was  held  that  the  variance  was 
not  material,  the  cause  of  action  being  evidently  the  same.^ 
So,  if  the  appellant  has  been  guilty  of  no  laches  in  per- 
fecting his  appeal,  the  court  may  enlarge  the  time  for 
filing  his  bond,  and  in  the  mean  time  order  a  stay  of 
proceedings  for  that  purpose,  upon  proper  terms.^  So 
where  a  party  appealed,  and  filed  a  bond  with  only  one 
surety ;  on  motion  to  dismiss  the  appeal,  the  court  may 
order  a  bond  with  two  sureties,  and  on  such  bond  the 

>  Stevens  v.  Hewitt,  30  Vt.  263.  s  D'Wolf  v.  Haydn,  34  111.  535. 

2  Tate  V.  Tate,  3  Grant,  150.  ^  Beclitol  y.  Cobaugli,  10  S.  &  R. 

3  McConnell    v.    Miclieltree,    4    131. 

Penn.  197.  ^  Bradley  v.  Hall,  1  Cal.  199. 

*  Bristol,  &c.,  V.  Collins,  5  Hurl. 
&  Nor.  969. 


742  THE    LAW    OF   NEW    TRIALS.  [CII.  XXI. 

same  summary  judgment  may  bo  rendered  as  if  it  bad 
been  taken  in  tbe  court  below. ^  And,  on  appeal  from  a 
justice  of  tbe  peace,  the  names  of  tbe  parties  may  be  so 
transposed  as  to  adapt  tbe  legal  form  to  tbe  merits  of  tbe 
case.2 

§  8G.  33ut  where  the  appellate  powders  of  a  court  are 
fixed  by  statute,  they  have  no  power  to  grant  a  new^  trial, 
or  reinstate  a  cause  which  they  have  once  disposed  of,  by 
judgment  on  the  merits,  or  by  nonsuit.^  And  an  amend- 
ment will  not  be  allowed,  if  the  eifect  would  be  to  reverse 
a  judgment  below,  rightly  given,  and  to  enter  a  judgment 
for  a  ditiercnt  plaintiff.^ 

§  87.  A  defendant,  against  wdiom  judgment  is  rendered 
by  a  justice  of  the  peace,  is  regarded  as  the  actor  in  the 
proceedings  after  appeal,  and  is  held  to  be  constantly  in 
court.'  And,  if  the  appellant  fail  to  prosecute  his  appeal, 
the  judgment  must  be  affirmed.*^ 

§  88.  It  is  held  that  the  plaintiff,  on  appeal,  cannot  take 
a  non  -pros,  at  pleasure.^  More  especially,  there  can  be  no 
judgment  of  nonsuit,  after  the  merits  of  the  case,  on  the 
part  of  the  plaintiff,  have  been  submitted.^  But  after 
judgment,  affirming  tbe  judgment  of  the  court  below, 
which  was  in  favor  of  the  defendant;  the  judgment  of 
affirmance,  on  motion,  was  not  entered  up,  but  the  court, 
^;ro/orma,  reversed  the  judgment  of  the  county  court,  and 
sufiercd  the  plaintiff  to  become  nonsuit.^ 

§  89.  An  appeal  is  often  disposed  of  by  judgment  of 

•  McDowell  1).  Bradley,  8  Ircd.  ^  ISIartin  v.  TTisrgins,  32  Ala.  775. 
93.  0  ISIartin  v.  While,  11  Mis.  214. 

2  Giffen  v.  St.  Clair  Township,  4  ^  Prettyman  v.  Waples,  4  Har- 
W.  A:  S.  ;527.  ring.  299. 

3  Schuyler'y.Mills,  4Dutch.  137.        «  Doremus  v.  Howard,  3   Zabr. 
«  Justices,    «&c.    v.  Simmons,  3    390. 

Jones,  187.  ^  Morton  v.  Edwin,  19  Vt.  77. 


CH.  XXI.]  APPEAL.  743 

dismissal.{a)  Where  the  appellee  files  a  copy  of  the  record, 
and  gives  reasonable  notice  to  the  appellant,  he  may  move 
to  dismiss  an  appeal  which  has  been  improvidcntly  granted, 
and  which  improperly  restrains  him  from  collecting  his 
judgment.^  So,  if  the  appellant  fails  to  appear,  the  appeal 
may  be  dismissed,  and  the  judgment  of  the  justice  of  the 
peace  affirmed.^ 

§  90.  Neglect  of  the  appellant,  to  comply  with  an  order 
to  file  a  new  recognizance  before  the  case  was  reached  in 
order,  is  ground  for  a  dismissal.^  So  where  the  record 
sent  up  is  insufiicient  to  give  jurisdiction,  the  court  may  in 
its  discretion  either  compel  the  proper  record  to  be  certified 
to  it,  or  the  proceedings  dismissed.^ 

§  91.  A  plaintiff  in  detinue,  having  recovered  only  one 
of  the  slaves  sued  for,  excepted  to  the  rulings  of  the  court 
against  him,  and  took  an  appeal,  but  afterwards  coerced 
satisfaction  of  the  judgment.  This  fact  having  been 
proved  by  afiidavits,  he  was  required  to  make  restitution 
by  the  next  term  of  the  court ;  and,  having  failed  to 
comply  with  this  order,  his  appeal  was  dismissed.^ 

§  92.  The  granting  of  an  appeal  by  a  justice  of  the 
peace  in  a  criminal  cause,  without  sureties,  is  an  irregu- 
larity which  the  court  above  may  correct.  And,  on 
motion,  if  seasonably  made,  the  appeal  will  be  dismissed 
as  in  civil  causes,  leaving  the  judgment  in  the  court 
below  in  full  force.^ 


'  Reynolds  r.  Perry,  11  111.  534.        *  Baker  «.  Calvert,  10  Ark.  485. 

2  Shook  V.  Thomas,  21  111.  87.  ^  Earle  v.  Reid,  2r)  Ala.  463. 

3  Crow  V.  French,  3  Iowa,  134.  «  State  v.  White,  41  N.  11.  194. 

(a)  See  Michie  v.  MicMe,  17  Gratt.  109;  Gardner  v.  Diedricli,  40  III. 
72 ;  Bynum  v.  Hamilton,  19  La.  An.  446  ;  Holsenback  v.  Martin,  28  Geo. 
73.  If,  in  an  appeal  from  a  justice  of  the  peace,  it  appear  that  the 
justice  had  no  jurisdiction,  the  court  should  dismiss  the  suit.  Fleming 
V.  Limebaugh,  2  Met.  (Ky.)  265. 


74-t  THE   LAW    OF   NEW    TRIALS.  [CII.  XXI. 

§  93.  If,  in  case  of  an  indictment  fatally  defective,  the 
prosecution  is  barred  by  the  statute  of  limitations,  the 
appellate  court  will  dismiss  the  case  entirely.^ 

§  94.  The  court  below  having  omitted  to  give  judgment 
upon  the  verdict  on  an  indictment ;  on  appeal,  the  case 
was  dismissed.^ 

§  95.  It  is  held  that  a  motion  to  dismiss  for  irregularity 
must  be  made  without  delay. ^  But  a  motion  of  the  plain- 
tiff to  dismiss  an  appeal  from  a  judgment  of  a  justice  of 
the  peace,  on  the  ground  that  his  record  does  not  show 
that  an  appeal  was  taken,  need  not  be  made  at  the  first 
term.**  And  an  appeal  from  a  justice  of  the  peace  may 
be  dismissed,  even  after  trial  and  verdict,  where  it  appears 
that  the  amount  in  controversy  exceeded  his  jurisdiction. 
Neither  the  laches  of  the  defendant,  nor  his  consent,  could 
give  jurisdiction.^ 

§  96.  The  dismissal  of  an  appeal  is  equivalent  to  an 
affirmance  of  the  judgment.*'  And  the  appellate  court 
cannot  afterwards  reverse  it.  If,  after  the  appeal  has 
been  regularly  entered  by  the  defendant,  the  plaintifl:' 
fails  to  appear  and  prosecute ;  the  court  may  order  a  dis- 
continuance.^ But  it  is  error  to  dismiss  an  appeal,  and  to 
reverse  the  judgment;  for,  by  dismissing  the  appeal,  the 
court  loses  cognizance  of  the  subject,  and  the  judgment 
stands  in  full  forcc.^  And,  after  a  full  investigation,  the 
appellate  court  may  refuse  to  dismiss  the  appeal  upon  the 
appellant's  motion,  and  insist  upon  finally  deciding  the 
case.^ 


'  Redflekl  v.  State,  24  Tex.  133.         «  Snthorland  v.  Phelps,  23   111. 

2  Ilonrv  V.  State,  24  Tex.  3G1.        91  ;  G  Wis.  3.-)0. 

3  Steward  v.  Dixon,  G  Mich.  391.        '  Haner  v.  Polk,  G  Wis.  350. 

»  Moore  v.  Lyman,  13  Gray,  394.        8  Mauion  v.  The  State,  11  Mis. 
5  Collins  V.  Collins,  37  Penn.  387.     578. 

9  Delta  V.  Walker,  24  111.  233. 


en.  XXI.]  APPEAL.  745 

§  97.  The  defendant  appealed  from  the  judgment  of  a 
justice,  but  neglected  to  enter  his  appeal.  The  plaintift", 
at  the  next  term  of  the  court  following  the  appeal,  caused 
a  copy  of  the  justice's  record,  certified  by  the  county 
clerk  (the  justice,  though  out  of  ofiice,  still  continuing  to 
reside  in  the  same  county),  to  be  entered  for  affirmance. 
The  defendant  moved  to  dismiss  the  suit  on  account  of  the 
defective  mode  of  certifying  the  records,  and  consequent 
want  of  jurisdiction.  Held,  the  county  court,  pending 
this  motion,  might  continue  the  cause,  to  enable  the  plain- 
tiff to  file  a  properly  certified  copy  of  the  record,  and,  upon 
its  being  filed,  proceed  and  try  the  cause  upon  its  merits.' 

§  98.  Where  an  appeal  is  dismissed,  whether  on  motion 
or  for  other  cause,  the  whole  case  is  out  of  court,  includ- 
ing cross-errors  filed  by  the  appellee.^ 

§  99.  It  is  sometimes  the  practice  to  remand  a  cause  to 
the  court  from  which  an  appeal  was  taken.^  But,  where, 
after  a  verdict  for  the  plaintifi',  and  an  appeal  by  the  de- 
fendant, the  court  is  of  opinion  that  the  plaintiff  cannot 
recover — as  where  there  is  an  admission  of  satisfaction  of 
his  demand — they  will  not,  upon  the  reversal  of  the  judg- 
ment, award  a  'procedendo.^ 

§  100.  Where  a  defendant  was  convicted  on  an  indict- 
ment for  a  felony,  and  appealed,  and  the  error  assigned  in 
the  appellate  court  was,  that  the  facts  stated  in  the  indict- 
ment did  not  amount  to  a  felony ;  held,  the  Supreme  Court, 
upon  reversing  the  judgment  for  this  error,  would,  under 
the  provisions  of  the  act  establishing  the  court,  give  direc- 
tions to  the  court  below  to  give  judgment  for  a  misde- 
meanor, that  being  the  proper  judgment.^ 

'  Carruth  i).  Tigke,  32  Vt.  626.  73;  Humpbrey  v.  Sears,  2  Wis.  201; 

2  Crawford  v.  Basliford,  16   B.  McMillan  v.  Richards,  12  Cal.  467. 

Mon.  3  ;   Maxwell  v.  Williams,  1  <  Stockton  v.  Frey,  4  Gill,  406. 

Hemp.  172.  ^  Tlie  State  v.  Upcliurch,  9  Ired. 

*  See  Dennis  ».  Dennis,  15  Md.  454. 


746  THE   LAW    OF   NEW    TRIALS.  [CH.  XXL 

§  101.  On  a  chancery  appeal,  the  whole  cause  is  reheard, 
and  the  merits  determined;  therefore,  after  the  judgment 
of  the  appellate  court,  the  lower  court  cannot  rehear  the 
cause,  unless  specially  directed  so  to  do  hy  the  decree  on 
appeal,  nor  take  any  steps  except  such  as  are  necessary  to 
carry  out  that  decree.^ 

§  102.  After  a  rcmUtUur  has  been  regularly  sent  to  the 
court  below,  in  an  appeal  case,  the  court  of  appeals  loses 
jurisdiction  of  the  cause.^ 

§  103.  A  cause  was  docketed  and  dismissed  in  the  Su- 
preme Court  of  the  United  States,  and  a  mandate  there- 
upon sent  down,  on  the  motion  of  the  appellee.  It  appeared 
afterwards,  that  an  appeal  had  not  then  been  allowed,  but 
was  under  consideration  in  the  court  below,  and  the  dis- 
missal w-as  thereupon  revoked ;  it  appearing  also  that  the 
judgment  below  against  the  United  States  was  obtained 
by  the  fraudulent  connivance  of  the  district  attorney,  and 
that  what  purported  to  be  the  order  allowing  the  appeal 
was  drawer  and  sent  up  by  the  same  fraudulent  con- 
nivance.^ 

§  104.  In  reference  to  the  parties  to  an  appeal,  none  but 
parties  to  the  decree  or  judgment  have  the  right  of  appeal.* 
And,  on  the  other  hand,  every  person,  against  whom  a 
justice  of  the  peace  renders  a  judgment,  is  entitled  of  com- 
mon right  to  an  appeal  and  a  trial  by  jury,  whether  the 
judgment  was  obtained  by  confession  of  the  party  or  his 
agent,  or  otherwise.^  The  right  exists  only  in  favor  of  a 
party,  whose  substantial  rights  are  prejudiced  by  the  judg- 


1  Sonle  V.  Dawes,  14  Cal.  247.  *  McKim  v.  Mason,  3  ^Ul.  Ch. 

2  Dresser  «. Brooks,  2  Comst.  559.  Dccis.  18G;  Montgomery  v.  Leaven- 

3  United  States  «.Gomcz,23  How.  Avorth,  2  Cal.  57. 

326.  ^  Rowen  v.  King,  23  Penu.  409. 


en.  XXT.]  APPEAL.  747 

meiit.X«)  Thus  if  a  verdict  and  judgment  in  a  petition 
for  freedom  are  in  ftivor  of  the  defendant,  he  cannot  sus- 
tain an  appeal,  because  he  is  not  aggrieved. ^  So,  where 
part  of  an  order  appealed  from  is  in  favor  of  the  appellant, 
such  portion  is  not  open  for  review  on  his  appeal.^  So  a 
decree  will  not  be  reversed  for  the  benefit  of  a  party  who 
has  not  appealed.*  But  either  party  may  appeal,  and 
therefore,  if  one  party  only  appeals,  he  may  dismiss  his 
appeal  against  the  wish  of  the  appellee.^ 

§  105.  Both  parties  may  appeal.  In  such  case,  the  clerk 
should  make  two  transcripts  of  the  record,  as  there  are 
two  cases  in  the  court  above ;  otherwise,  the  clerk  of  the 
Supreme  Court  should  minute  two  cases  on  his  docket, 
and,  if  judgment  is  affirmed,  should  charge  both  appel- 
lants costs.^ 

§  106.  Substantial  parties  must  all  join  in  an  appeal.^(«) 

«  Comhs  v.  Jefferson,  &c.,  3  Met.  ?  Lovejoy  v.  Irelan,  17  Md.  525; 

(Ky  ),  72.  Kelly  v.  Muse,  11  Ired.  182;  Brew- 

2  Einirgold  V.  Barley,  5  i\[d.  186.  ster  v.  Wakefield,   22   How.   118; 

3  Smith  fl.  SDiith,  7  Md.  55.  Clifton    v.    Sheldon,   23    ib.    481; 
*  Lanahan».  Latrobe,  7Md.  208.  "Wells  v.  Reynolds,  3  Scam.  191; 

5  Bacon  v.  Lawrence,  26  111.  53.     State  v.  Martin,  2  Ired.  101.     See 

6  Devereux  v.  Burgwin,  11  Ired.     Smith  v.  Foster,  3  Cold.  139. 
490. 


[a)  Where  the  appellant  had  by  an  assignment  to  a  friend  substan- 
tially acquired  all  the  appellee's  interest  and  control  in  the  decree,  and 
had  agreed  to  pay  the  counsel  on  both  sides,  though  nothing  of  this  was 
known  to  the  counsel  on  either  side ;  the  court  dismissed  the  appeal. 
Cleveland  v.  Chamberlain,  1  Black,  419.  Pending  a  foreclosure  suit,  the 
mortgagor  sold,  agreeing  with  the  vendee,  that  the  latter  should  pay  off 
the  mortgage,  counting  money  paid  thereon  as  paid  towards  the  price 
if  less  than  the  price,  the  mortgagor  to  repay  the  vendee  all  that  the  latter 
should  pay  on  the  mortgage  in  excess  of  the  price.  A  judgment  was  then 
had  for  a  foreclosure  sale,  from  which  the  vendees  appealed  in  the  name 
of  the  mortgagor,  who  waived  the  appeal,  and  asked  to  have  it  dismissed. 
Held,  the  vendees  had  no  such  interest  as  would  enable  them  to  insist 
on  an  apppeal,  against  the  will  of  the  mortgagor.  Baasen  v.  Eilers,  11 
Wis.  277. 

(a)   In  Louisiana,  where  one  defendant  appeals,  the  appeal  will  be 


748  THE    LAW    OF   NEW    TRIALS.  [ciI.  XXI. 

One  defendant  cannot  sustain  an  appeal  from  a  joint  judg- 
ment against  two  or  more,  when  all  Lad  joined  in  the 
pleadings,  and  the  trial  was  joint.'  But  it  is  held  that 
one  defendant  may  appeal  for  all,  and  cannot  afterwards 
withdraw  the  appeal  for  the  others.^  Thus  where  A.  and 
B.  were  sued  as  partners,  and  served  with  process  from  a 
justice,  and  A.  alone  appeared,  and  swore  that  he  never 
was  a  partner,  and  did  not  owe,  &c.,  and  judgment  was 
thereupon  rendered  against  B.  alone;  held,  the  judgment 
did  not  dismiss  the  action  as  against  A.,  and  therefore  he 
was  a  proper  appellant  with  B.,  as  the  appellate  court  had 
jurisdiction  against  him.^  So  where  several  co-sureties 
were  sued,  and  did  not  resist  the  plaintiff's  right  to  re- 
cover, but  pleaded  that  one  w^as  co-surety  of  another; 
held,  an  appeal  could  not  lie  for  one  alone,  if  any  appeal 
could  be  allowed.'*  So  where  several  defendants  in  trover 
pleaded  severally,  but  a  joint  judgment  was  rendered 
against  all,  and  one  only  appealed ;  the  appeal  was  dis- 
missed on  motion.' 

§  106rt.  In  the  Supreme  Court  of  the  United  States,  a 
motion  was  made  to  dismiss  an  appeal,  because  it  had 
])een  taken  only  by  a  part  of  the  complainants,  and  such 
as  had  been  omitted  were  not  parties  to  the  appeal.  The 
court  refused  the  motion,  but  held  that  the  matter  might 
be  brought  up  again  at  the  hearing  on  the  merits,  as  the 
questions  involved  in  the  motion  were  connected  wntli  the 
merits,  and  could  not  be  determined  upon  a  summary 
proceeding.^ 

'  Ilicks  V.  Gilliam,  4  Dcv.  217.  «  Donnell  v.  Shields,  8  Ired.  371 ; 

^  Bonner  v.  Campbell,  48  Peun.  Smitli  v.  Cuuniugham,  ib.  4G0. 

28G.  6  Day  v.  Washburn,   23   How. 

3  Hooper  v.  Farwell,  3  Min.  lOG.  309. 

^  Loftin  V.  Kornegay,   11  Ired. 
437. 

dismissed,  unless  he  makes  his  co-defendants,  who  were  necessary  parties 
in  the  court  below,  parties  to  the  appeal.  Folger  v.  Kouanet,  13  La. 
An.  29G. 


en.  XXI.]  APPEAL.  749 

§  1066.  Ill  Indiana,  under  2  R.  S.  (p.  160,  §§  561-2), 
where  an  appeal  is  barred  as  to  some  appellants  by  lapse 
of  time,  and  as  to  others,  who  were  infants,  it  is  not ;  the 
former  may  be  stricken  from  the  record,  and  the  appeal 
will  be  good  as  to  the  others.^ 

§  106c.  In  trespass  against  A.,  B.,  and  C,  in  the  justice's 
court,  there  was  a  discontinuance  as  to  A.,  and  judgment 
against  B.  and  C.  B.  appealed,  and  both  appeared  before 
the  appellate  court;  judgment  on  the  merits  was  rendered 
against  B.  and  C. ;  and  B.  appealed  to  the  Supreme  Court. 
Held,  the  appearance  of  the  two  in  the  county  court  cured 
the  defect  of  only  one's  appealing ;  also  any  objection  on 
error  to  the  jurisdiction  of  the  justice,  or  to  the  joining  of 
the  other  defendants  in  the  county  court .^ 

§  106(/.  Though,  in  a  suit  ex  contractu  against  several, 
the  judgment  is  either  good  against  all,  or  bad  against  all, 
and  cannot  legally  be  reversed  in  part ;  yet,  where  this  has 
been  done,  the  error  cannot  be  taken  advantage  of,  on 
appeal,  by  the  parties  against  whom  alone  the  judgment 
should  have  been  entered.^ 

§  107.  If,  of  several  defendants,  some  appeal  in  their 
own  names,  without  joining  the  others,  the  appeal  should 
be  dismissed  on  motion.  The  appeal  should  be  taken  in 
the  names  of  all  who  are  living  and  aggrieved  by  the 
judgment ;  and,  if  any  refuse  to  unite  with  the  others  in 
its  prosecution,  they  should  be  summoned  and  severed.^ 

§  108.  Where  one  appellant  dies  after  the  appeal  is 
perfected,  either  party  may  have  the  appeal  revived  in 
the  name  of  his  representative.^ 

'  McEudreew.  McEndee,  12  lud.  *  Kain  v.  Gradon,  6  Blackf.  138; 

97.  Savage  v.  Walsh,  3^  Ala.  293. 

2  Tower  v.  Lamb,  G  Mich.  362.  ^  Raiue   v.  Bauk,  &c.,  4  Gratt. 

3  Geisler  v.  Acosta,  5  Seld.  227.  150. 


750  THE    LAW    OF   NEW    TRIALS.  [CIL  XXI. 

§  109.  If,  before  trial  on  appeal,  one  defendant  dies,  Lis 
representatives  must  be  made  parties,  although  the  appeal 
was  taken  by  another  alone.' 

§  110.  When  subsequent  attaching  creditors  come  in 
and  defend  a  suit,  they  have  the  right  to  appeal.^ 

§  111.  After  the  bankrupttcy  of  a  partner,  he  cannot  be 
joined  with  his  copartner  as  plaintiiF.  But  where  such  an 
action  is  brought  to  the  court  above  by  appeal,  the  assignee 
may  be  substituted.^ 

§  112.  An  assignee  for  the  benefit  of  creditors  may 
appeal  from  a  judgment  of  a  justice  against  a  trustee,  on 
an  attachment  a2:ainst  his  assicinor.^ 


"&* 


§  113.  When  the  appellant  is  an  infant,  the  appeal  must 
be  sued  out  by  his  guardian  or  next  friend,  who  may  either 
give  bond  to  supersede  the  judgment,  or  security  for  the 
costs  of  the  appeal ;  and  where  the  appeal  is  sued  out  by 
the  infant  in  his  own  name,  and  errors  are  assigned  by 
attorney,  the  appeal — the  fact  of  infancy  being  shown  by 
affidavits — will  be  dismissed  on  motion.^ 

§  114.  As  a  party  in  interest  (by  reason  of  his  commis- 
sions), it  is  held  that  the  agent,  attorney,  or  trustee  of  a 
mortgagee  may  appeal.^ 

§  115.  If  the  purchaser  of  land  at  sheriff's  sale  has  the 
right  to  claim  a  writ  of  habere  facias  possessionem,  such 
right  does  not,  after  his  death,  devolve  upon  his  adminis- 
trators, and  they  cannot  appeal  from  an  order,  discharging 


'  Stcll  V.  Glass,  1  Kcllv,  475.  <  Blctz  v.  Haldeman,  2G  Pcnn. 

2  Chaffee  v.  Malarkoe,  20  Vt.  242.     403. 

'  Merrill    v.'  Tamauy,  3  Penn.        ^  c^ok  v.  Adams,  27  Ala.  294. 
433.  e  White  v.  IMulcolm,  15  Md.  529. 

See  Teacklc  v.  Crosby,  14  Md.  14. 


CII.  XXL]  APPEAL.  Vol 

a  rule  laid  upon  tlic  tenant  in  possession  and  claimants  of 
the  land,  to  show  cause  why  the  writ  should  not  issue.^ 

§  116.  An  appeal  lies  from  an  order  discharging  a 
garnishee.^ 

§  117.  In  Vermont,  a  trustee  cannot  appeal,  unless  the 
other  parties  could  do  it.^(a) 

§  118.  In  reference  to  the  amount  of  the  judgment 
appealed  from  •,{b)  a  case  will  not  he  dismissed  on  appeal, 
on  motion  of  the  appellant,  because  the  amount  of  damages 
awarded  by  the  justice  of  the  peace  exceeds  a  justice's 
jurisdiction,  nor  because  it  exceeds  the  ad  damnum  of  the 
writ.'* 

§  119.  Judgment  cannot  be  rendered  for  a  sum  greater 
than  could  be  recovered  below,  and  interest.  But,  where 
the  declaration  is  for  a  sum  within  the  jurisdiction  of  the 
court  below,  and  interest  on  such  sum  from  the  time  it 
became  due,  and  there  is  a  verdict  for  a  sum  beyond  the 
jurisdiction  of  the  court  below;  judgment  will  not  be 
reversed.^ 

>  Turner  v.  Waters,  14  Md.  G2.  ^  Earl  v.  Leland,  14  Verm.  338. 

2  Bcbb  v.  Preston,  1  Clarke  <  Wallace  v.  Brown,  5  Fost.  216. 
(Iowa),  4G0.  ®  Panitt  «.  Stuart,  5  Ala.  112. 


(a)  As  to  an  appeal  for  the  State,  in  criminal  prosecutions,  see  State 
V.  Jones,  1  Murph.  257 ;  Commonwealth  v.  Sandford,  5  Litt.  289 ;  State 
V.  Solomons,  6  Yerg.  3G0;  State  v.  Haddock,  2  Hayw.  162;  State  v. 
McGrorty,  2  Min.  224;  State  v.  Judge,  14  La.  An.  323;  State  v.  Ross, 
ib.  364;  Commonwealth  v.  Van  Tuyl,  1  Met.  (Ky.)  1 ;  Commonwealth 
V.  Thompson,  13  B.  Mou.  159 ;  State  v.  Cason,  20  La.  An.  137 ;  State 
V.  Credle,  63  N.  C.  506. 

(6)  See  Spear  v.  Place,  11  How.  522.  It  is  sometimes  held,  that  on 
appeal  the  defendant  may  recover  an  amount  beyoud  the  justice's  juris- 
diction. Prettyman  v.  Waples,  4  Harring.  299.  And  that  a  verdict 
for  a  larger  sum  than  was  within  the  jurisdiction  of  the  justice  is  not 
evidence  that  the  justice  had  no  jurisdiction.  McKiuley  v.  McCalla,  5 
Biun.  600 ;  McEntire  v.  McElduff,  1  S.  &  R.  19. 


752  THE    LAW    OF   NEW    TRIALS.  [CIL  XXI. 

§  120.  "Where  the  judgment  was  rendered  for  too  large 
an  amount,  and  the  correct  sum  was  certain  and  fixed  hy 
the  evidence  on  appeal;  the  judgment  was  reversed,  and 
the  case  remanded,  with  directions  to  the  court  below  to 
cuter  judgment  for  the  proper  sum.^ 

§  121.  After  a  trial  on  the  merits,  an  appeal,  and  a  trial 
in  the  appellate  court  on  the  merits ;  the  defendants  can- 
not object  that  the  damages  claimed  were  beyond  the  juris- 
diction of  the  justice,  the  objection  not  being  raised  in  the 
appellate  court.- 

§  122.  Where  damages  are  given,  an  appeal  embraces 
not  only  the  question  of  amount,  but  also  the  question, 
whether  by  the  nature  of  the  case,  or  upon  the  facts 
shown,  any  damages  are  recoverable.^ 

§  123.  "Amount  in  dispute"  is  held  the  amount  of  the 
plaintiff'' s  claim.^ 

§  124.  On  appeal,  the  amount  of  the  recovery,  and  not 
the  amount  of  damages  laid  in  the  declaration,  is  to  be 
looked  to  to  show  the  jurisdiction  of  the  court.^ 

§  125.  A  set-off,  which  exceeds  in  amount  the  sum  of 
which  the  lower  court  has  jurisdiction,  is  not  allowable  on 
appeal."  So,  in  Alabama,  judgment  cannot  be  rendered, 
on  appeal  from  a  justice,  for  a  set-olf  which  exceeds  $50, 
against  the  consent  of  the  plaintiff.^ 

§  126.  In  Vermont,  a  declaration,  in  an  action  com- 
menced before  a  justice  of  the  peace,  counted  upon  two 
notes,  both  together  less  than  $20  in  amount,  and  also 
contained  a  count  for  money  had  and  received,  for  $20. 

•  Fan-  V.  Johnson,  25  111.  522.  ^  Hart  v.  Funk,  15  Ala.  G75. 

«  Tower  v.  Lamb,  G  Mich.  8G2.  e  Pi(iuet    v.    Cormick,    Dudley, 

3  Spray  v.  Thompson,  9  Iowa,  40.  Geo.  20. 

«  Gillespie  v.  Benson,  18  Cal.  400.        ^  SuiiUi  v.  Fleming,  9  Ala.  7G8. 


en.  XXI.]  APPEAL.  753 

The  plaintiff  oftbrecl  in  evidence  the  notes  alone,  and, 
before  judgment,  waived  and  abandoned  the  count  for 
money  had  and  received.  Held,  the  action  was  not  ap- 
pealable.^ Nor  an  action  before  a  justice  of  the  peace,  on 
a  promissory  note  exceeding  twenty  dollars,  but  indorsed 
below  ten  dollars ;  the  ad  damnum  in  the  plaintiff's  writ 
being  ten  dollars,  and  there  being  no  plea  in  offset.^ 

§  127.  In  the  same  State,  where  the  account  pleaded  in 
ofiset  exceeds  the  sum  of  ten  dollars,  the  case  is  appealable, 
unless  the  account  appears  to  be  fictitious,  or  filed  for  the 
purpose  of  obtaining  the  right  of  appeal.^ 

§  128.  In  Tennessee,  replevin  was  brought  before  a  jus- 
tice for  a  mule.  Value  laid  in  the  warrant  not  above  fifty 
dollars.  Judgment  for  the  plaintiff.  On  appeal,  the  jury 
found  a  special  verdict,  assessing  the  value  at  $110,  sub- 
ject to  the  decision  of  the  court  whether  the  justice  had 
or  had  not  jurisdiction.  The  court  gave  judgment  for  the 
defendant.  Held,  on  appeal,  it  was  error  for  the  court  to 
give  judgment  for  the  defendant  for  above  fifty  dollars, 
its  jurisdiction  on  appeal  from  the  justice  being  limited 
to  his  jurisdiction.^ 

§  129.  Where  several  sailors  join  in  a  libel  against  a 
vessel  and  cargo,  and  the  District  Court  awards  salvage 
to  the  amount  of  more  than  $2000,  but  not  so  much  as 
that  amount  to  any  one  libellant ;  no  appeal  lies  by  either 
party  to  the  Supreme  Court  of  the  United  States.^ 

§  130.  A  complaint  demanded  $2000;  and  the  verdict 
was  $3000.  The  court  below  amended  the  complaint,  by 
inserting  $3000  instead  of  $2000,  and  rendcrcd  judgment 
for  $3000.     On  ai:)peal,  the  court  above  vacated  the  order 

'  Cooper  V.  Miles,  16  Verm.  643.        '  Phcvwin  v.  Colhurn,  2.j  Vt.  613.. 
2  Boardman    v.    Ilarriugtou,    9        '  Gray  v.  Jones,  1  Iloatl,  o42. 
Verm.  151.  ^  Spear  v.  Place,  11  Uow.  523. 

4a 


754  THE   LAAV    OF   NEW    TRIALS.  [CH.  XXI. 

of  amendment,  gave  leave  to  the  plaintiff*  to  remit  the 
damages  over  $2000,  affirmed  the  judgment  for  that 
amount,  with  costs,  and  reversed  it  as  to  the  excess.^ 

§  131.  As  we  have  seen,  the  form  of  taking  an  appeal 
is  not  by  a  new  and  original  process,  like  a  writ  of  error, 
but  by  the  allowance  of  the  court  which  renders  the  judg- 
ment appealed  from.  From  this  it  results,  that  certain 
prescribed  formalities  are  to  be  observed  in  transferring 
the  case  to  a  higher  tribunal,  the  neglect  of  which  will 
render  an  appeal  wholly  ineffectual.^ 

§  132.  The  fact  of  appeal  can  be  proved  by  the  record 
only,  and  not  by  the  statements  of  the  appellee  in  a  com- 
plaint filed  by  him  for  affirmation  of  the  judgment.^ 

§  133.  The  statutory  requirements  as  to  a  return  of  the 
proper  papers  must  be  strictly  complied  with.  Thus,  in 
l!^ew  York,  upon  appeal  from  a  judgment  by  default,  the 
justice  must  return  that  a  copy  of  the  complaint  was 
served,  verified  by  the  oath  of  the  pleader,  or  his  attorney. 
A  return,  that  the  summons  was  by  the  constable's  return 
certified  "to  have  been  served  with  the  complaint  veri- 
fied," is  insufficient.  So  the  return  must  state,  that  the 
complaint  annexed  is  the  one  served  on  which  judgment 
was  rendered.'*  So,  in  Vermont,  an  appeal  from  a  justice 
is  in  no  sense  entered,  when  the  copies  required  by  Comp. 
Laws,  p.  238,  §  73,  are  never  filed,  the  statute  being  man- 
datory.^ So,  in  Texas,  when  a  cause  comes  up  on  appeal, 
the  transcript  of  the  record  must  be  certified  by  the  clerk 


'  Corning  ■».  Corning,  2  Sekl.  97.  wood,  12  Flori.  432;  Carleton  v. 

2  See  Puget  v.  Pierce,  1  "Wash.  Goodwin's,  41  Ala.  153  ;  Collins  v. 
Terr.  89.  U.  S.  itc,  27  Ind.  11 ;  Watt  v.  Al- 

3  IMoore  i\  Lyman,  13  Gray,  394;  vord,  ib.  495  ;  Wetherbee  v.  Car- 
1  How.  Miss.  21.  roll,  33  Cal.  549. 

*  Spring  V.  Baker,  1   Hilt.  526.  ^  Goodenow  v.  Stafford,  1  Wii- 

See    Edmonson  v.   Bloomshire,   7  liams,  437. 
Wall.  300 ;  Underwood  t'.  Under- 


CH.  XXI.]  APPEAL.  755 

to  be  a  true  transcript  of  all  the  proceedings.^  And  it  is 
a  general  rule,  that  an  appellate  court  can  act  only  on  the 
record  from  the  court  below,  which  must  contain  a  case 
sufficiently  certain  in  its  character  to  enable  the  appellate 
court  to  act  upon  it."  Thus  where  the  transcript  is  unin- 
telligible from  omissions,  interlineations,  and  erasures, 
the  appeal  will  be  dismissed  at  the  cost  of  the  appellant.^ 
Or,  where  the  record  is  so  confused,  that  the  appellate 
court  cannot  act  upon  it  with  safety  to  the  rights  of  the 
parties,  the  cause  will  be  remanded,  with  leave  to  the 
parties  to  replead.* 

§  13-4.  In  Georgia,  if  the  clerk,  on  appeal,  send  up  the 
original  papers  and  a  certified  copy  of  the  appeal  bond, 
this  is  a  transmission  of  the  appeal,  within  the  meaning 
of  the  statute.^  And  in  Delaware,  though  the  transcript 
of  a  justice  of  the  peace,  on  appeal,  is  required  to  be  under 
seal;  the  seal  is  not  necessary  to  give  jurisdiction  to  the 
superior  court.  And  the  seal  may  be  waived  by  pleading 
to  an  irregular  transcript.^  So,  in  New  Jersey,  an  appeal 
will  not  be  dismissed,  because  the  justice  omitted  to  cer- 
tify in  his  transcript  the  fact  that  he  granted  it.  The 
acceptance  of  the  bond,  and  the  sending  up  of  the  papers, 
are  sufficient  evidence  that  he  did  grant  it.^  So,  in  Rhode 
Island,  a  copy  of  the  recognizance,  given  on  appeal  from 
a  justice's  court,  is  not  an  essential  portion  of  the  copy  of 
the  case  to  be  filed  in  the  appellate  court,  and  the  filing 
of  an  incorrect  copy  is  no  ground  for  dismissing  the 
appeal.^  So,  in  Indiana,  on  appeal  from  a  justice  of  the 
peace,  the  certificate  of  the  justice  annexed  to  the  tran- 
script was  as  follows :  "  I  hereby  certify  that  the  foregoing 
is  a  true  transcript  of  the  proceedings  had  before  me,  in 

'  Martin  v.  Latimer,  4  Tex.  335.  Nisbet  v.  Lawson,  1  Kelly,  275; 

2  Carrawayo.  Board,  &c.,  1  How.     Iludson  iJ.Pettijohn,  4  niirring.350. 
Miss.  21.  *'  Lewis  v.  Hazel,  4  Harring.  470. 

3  Hugbartv.Giddens,  6Tex.  488.         ?  Rodenbough    v.    Rosebury,    4 
»      <  Lyou  V.  Tevis,  8  Clarke  (Iowa),    Zabr.  491. 

79.  «  State  v.  Almy,  3  R.  I.  149. 


756  THE   LAW    OF   NEW    TRIALS.  [CII.  XXI. 

tlic  above  cause,  as  appears  from  my  docket.    Given  under 
my  hand  and  seal,"  &c.     Held,  sufficient.^ 

§  135.  The  uniform  statutory  requirement  is,  that  copies 
of  the  material  papers  be  sent  up.(a)  It  is  irregular  for  a 
clerk  and  master,  even  by  consent  of  counsel,  to  send  up 
the  original  papers  of  a  cause,  on  an  appeal  from  an-  inter- 
locutory order,  or,  by  consent,  to  charge,  in  such  a  case, 
as  if  copies  had  been  made  and  sent  up.-  And  original 
papers,  without  a  certified  transcript  of  the  record,  confer 
no  jurisdiction  upon  the  court  above,  on  appeal.^  See 
§  1^2. 

§  136.  It  is  the  usual  requirement,  that  copies  of  any 
papers  constituting  the  foundation  of  the  plaintifl''s  de- 
mand be  sent  up  as  part  of  the  record."* 

§  137.  On  appeal  from  a  justice,  in  Indiana,  it  must 
appear,  from  the  transcript  of  the  record,  that  the  plaintiff 
had  filed  a  statement  of  his  demand,  or  some  note  or  other 
Avriting  relied  on  as  the  cause  of  action;  othervrise  the 
action  will  be  dismissed.'  But  any  statement,  however 
short  or  informal,  will  answer  the  purpose,  provided 
enough  be  shown  to  bar  another  action  for  the  same 
demand.^ 

§  138.  It  is  error  to  receive  notes  in  evidence  not  marked 
as  filed  by  the  justice,  nor  otherwdse  identified  by  the 
transcript.'' 

§  139.  The  bill  of  particulars  filed  in  the  justice's  court, 

'  Whitney  v.  Mills,  0  Blackf.  545.         5  Bell  v.  Trotter,  4  Blackf.  12. 

2  Emmons  w.  McKesson,  5  Jones,        ^  Denby  v.  Hart,  4  Blackf.  13. 
Eq.  92.  ^  Grafts.  Diltz,  3  Greene  (Iowa), 

3  Huston  V.  Huston,  3  Iowa,  248.     570. 
*  Waugh  V.  Andrews,  3  Ired.  75. 

(a)  See  Buckley  v.  Lacroix,  14  La.  An.  29. 


CU.  XXL]  APPEAL.  757 

in  Ohio,  must  l)e  certified  on  appeal,  and  the  evidence  con- 
fined to  such  particulars.^ 

§  140.  If  the  papers  necessary  on  the  appeal  are  not 
submitted  to  the  court ;  either  the  appeal  will  be  dismissed 
for  informality ,2  or  the  appellee  may  docket  the  cause 
himself,  and  have  the  judgment  proper  upon  the  merits 
entered.^ 

§  141.  In  general,  however,  reasonable  indulgence  is 
allowed,  in  case  of  failure  strictly  to  comply  with  the 
statutory  requirements  as  to  return  of  papers.  It  is  held, 
that  neglect  of  a  justice  of  the  peace,  to  file  the  papers  in 
the  clerk's  ofiice  in  time,  is  no  cause  for  dismissing  the 
a]3peal.''  So,  that,  where  an  appellant  has  entered  into 
bond,  which  is  approved  and  accepted  by  the  justice;  the 
appeal  is  taken,  and  is  not  defeated  by  the  neglect  of  the 
justice  to  send  up  the  papers  within  the  time  required  by 
law.  But  the  appellant  may  apply  to  the  court  to  compel 
the  justice  to  send  up  the  papers.'  So  an  appeal,  dismissed 
because  the  transcript  was  not  filed  in  time,  was  rein- 
stated, on  affidavit  of  the  clerk  that  the  failure  was  owing 
to  his  not  having  prepared  it  in  time.^ 

§  142.  When,  in  Alabama,  the  original  papers  and  judg- 
ment entry  are  sent  up  properly  certified,  the  appellate 
court,  without  other  proof,  will  look  to  them  as  evidence 
of  what  was  done  in  the  cause.^     See  §  135. 

§  143.  An  error  in  a  certified  copy  of  an  appealed  crimi- 

>  McCoy  V.  Thompson,  Wright,  Scam.  288  ;  Little  v.  Smith,  4  lb. 

649,  400  ;    Ewing    i\  Bailey,    ib.  420  ; 

2  Sun,  &c.  V.  Dwight,  1  Hilt.  50.  Sherman    v.   Kolberg,   9    Cal.   17  ; 

3  Holloway  «.  Baker,  6  Clarke  Dickerson  «.  Apperson,  19  Mis. 
(Iowa),  52.  319. 

^  Lacy  V.  Fairman,  7  Blackf.  558.        «  Stark  ».  Barnes,  2  Cal.  162. 
s  See    Campbell    v.   Quiuliu,   3        '  Wolfe  v.  Parham,  18  Ala.  441. 


758  THE   LAW    OF   NEW    TRIALS.  [CH.  XXI. 

nal  case  may  be  corrected  iu  the  appellate  court  by  the 
certifying  officer.^ 

§  144.  If  the  transcript  sent  up  by  a  justice  of  the  peace 
be  imperfect,  a  motion  for  a  rule  against  the  justice,  to 
certify  a  full  and  correct  transcript,  &c.,  should  be  granted, 
although  not  made  until  after  a  motion  to  dismiss  the  suit 
by  the  appellee.  But  if  the  imperfect  transcript  shows  a 
good  cause  of  action,  the  suit  should  not  be  dismissed,  but 
only  the  appeal,  although  there  should  be  no  motion  to 
require  the  justice  to  amend.^ 

§  145.  It  is  the  invariable  practice  to  require  of  an 
appellant  a  bond  or  recognizance,  with  surety,  as  the 
condition  of  his  appeal.  In  this  respect,  as  in  others, 
appeal  differs  from  those  proceedings,  which  are  designed 
to  aiford  revision  in  matters  of  laio.  In  general,  it  seems 
to  be  contemplated  that  a  party  has  a  right  to  such 
revision,  without  terms ;  while  a  second  trial  of  questions 
of  fact  is  moi^  in  the  nature  of  2,  favor ^  upon  the  granting 
of  which  any  reasonable  conditions  may  be  imposed.  In 
the  various  legislation,  however,  of  the  several  States,  this 
cannot  be  laid  down  as  by  any  means  the  uniform  rule. 

§  146.  The  terms  of  the  bond  or  recognizance  usually 
relate  to  costs  and  intervening  damages,  and  are  designed 
to  indemnify  the  appellee  from  the  consequences  of  delay, 
and  the  necessary  expenses  incurred  during  the  pendency 
of  the  cause  in  the  appellate  court. 

§  146«.  An  appeal  is  void  without  an  approved  bond  or 
recognizance  by  the  appellant.3(rt)    So  where  the  recogni- 

i  Btate  V.  Littlefield,  3  R.  I.  124.  Gilm.  2G0;  Mills  v.  Bagby,  4  Tex. 

2  Boiles  V.  Barnes,  4  Blackf.  176.  820.      See  Turq\iand   v.  Moss,  17 

3  Dolloft"  V.  Plartwell,  38  Maine,  Com.  B.  (N.)  15;  McLane  v.  Rus- 
54;  Slater  v.  Steamboat,  &c.,  10  sell,  29  Tex.  127;  Wilson  v.  Ed- 
Mis.  513;  Simpson  v.  Alexander,  5  Avards,  5  Cold.  238. 


(a)  In  New  Hampshire,  when  an  appeal  is  taken  from  a  justice  of  the 
peace,  the  proper  practice  is,  for  the  justice  to  go  through  with  the  usual 


en.  XXI.]  APPEAL.  759 

zancG  mis-recites  the  judgment.^  And  where  an  appeal 
bond  is  not  in  proper  form,  the  appeal  may  he  dismissed.^ 
(See  §  153.)  So  the  claim  of  an  appeal  does  not  operate 
as  a  supersedeas  or  stay  of  execution,  until  the  appeal  bond 
is  filed.^ 

§  147.  In  Illinois  (and  this  is  probably  the  usual  prac- 
tice), it  is  not  sufficient  for  the  clerk  to  certify  that  an 
appeal  bond  had  been  Hied ;  a  copy  of  it  should  be  inserted 
and  certified  in  the  record  sent  up.^ 

§  148.  An  appeal  bond,  which  recites  that  one  not  a 
party  to  the  suit  has  taken  an  appeal,  is  void,  as  against 
public  policy.^ 

149.  Under  the  Rev.  Sts.  of  Massachusetts,  c.  138,  §  5, 
giving  an  appeal  to  convicts,  in  certain  cases,  and  pro- 
viding that  the  appellant  shall  be  committed  until  he 
shall  recognize,  &c. ;  an  appeal  was  disallowed,  where  the 
appellant,  after  claiming  his  appeal,  absconded  without 
recognizing.^ 

§  150.  Where  a  party  paid  the  justice  his  fee  for  an 
appeal,  and  merely  said  that  he  would  ofter  A.  as  bail, 
and  A.  afterwards  came  into  the  room  where  the  justice 
was,  for  the  purpose  of  becoming  bail,  but  nothing  was 

'  Curry  v.  Hinman,  3  Gilin.  90.  «  Pickering  ».  Mizncr,  4  Gilm. 

2  Young  V.  Mason,  3  Gilm.  55.        334. 

3  Branigau  v.  Rose,  3  Gilm.  123.        ^  Reid  v.  Quigley,  IG  Ohio,  445. 

5  Com.  v.  Dunham,  23  Pick.  11. 


form  in  taking  the  recognizance  of  the  principal  and  sureties.  Where 
they  present  themselves  before  the  magistrate,  to  recognize  as  required 
by  statute,  and  he,  with  their  assent  and  in  their  presence,  makes  an 
entry  upon  his  docket  of  an  appeal  and  of  tlieir  recognizing  as  principal 
and  sureties,  the  appeal  and  recognizance  are  sufTiciently  taken.  And  he 
may  be  compelled  by  mandamas,  upon  his  refusing,  to  make  out  a  copy 
in  due  form.     Ballou  v.  Smith,  9  Fost.  530. 


760  THE    LAW    OF   NEW    TRIALS.  [CH.  XXI. 

tlien  said  l)y  liim  or  any  one  else  in  regard  to  his  becoming 
bail,  and  the  justice  did  not  enter  him  as  bail,  and  nothing 
more  than  this  was  done  within  two  hours  after  rendition 
of  the  judgment;  held,  audita  querela  would  not  lie  to  set 
aside  the  judgment.^ 

§  151.  The  defendant,  in  an  action  of  debt  on  a  judg- 
ment rendered  by  a  justice  of  the  peace,  pleaded,  that, 
upon  the  rendering  of  said  judgment  against  him,  he 
moved  an  appeal  to  the  county  court,  which  was  allowed ; 
and  the  plaintiff  replied,  that,  though  true  it  is  that,  upon 
the  rendering  of  said  judgment,  the  defendant  moved  an 
appeal  to  the  county  court,  which  said  appeal  was  allowed, 
&c.  Held,  1st,  that  the  plea  was  not  bad  for  want  of  an 
averment  that  a  bond  or  recognizance  was  given  on  the 
appeal,  as  this  fact  was  necessarily  implied  in  the  allow- 
ance of  the  appeal;  2d,  that  the  replication  contained  an 
admission  that  a  valid  appeal  was  taken  and  allowed.- 

§  152.  After  an  entry  of  judgment  for  the  plaintiff  on 
a  justice's  docket,  this  statement  followed,  viz.:  "On,  &c., 
comes  the  defendant,  and  files  an  appeal  bond,  but  does 
not  ask  an  appeal  until  he  further  considers  the  matter." 
Held,  that,  notwithstanding  this  statement,  the  defendant 
might,  on  appeal,  show  by  affidavits,  that  the  appeal  was 
prayed  for  when  the  appeal  bond  was  filed.^ 

§  153.  In  case  of  a  defective  bond  or  recognizance,  the 
appeal  may  be  dismissed.^  (See  §  146a.)  Thus  the  court 
may  refuse  to  proceed,  for  want  of  jurisdiction,  if  they 
become  satisfied,  during  the  trial,  that  the  appeal  bond 
was  executed  without  authority.'  So  where  an  appeal 
was  allowed  to  two  defendants,  on  the  "condition  that 

'  Ilarriman  v.  Swift,  31  Vt.  BSo.        »  Frazer  v.  Smith,  G  Blackf.  210, 
2  Curtiss  V.  Beardsley,  15  Conn.        ^  FiTiicli  v.  Sncll,  ;J7  Elaine,  100. 
518.  ^  Slietliar's  Case,  4  Cow.  540. 


en.  XXI.]  APPEAL,  701 

they  file  their  bonds,"  and  only  one  filed  Lis  bond ;  the 
appeal  was  dismissed  with  costs.^ 

§  154.  The  plaintiff  filed  a  motion  to  dismiss  the  appeal, 
for  non-compliance  with  the  statute  requisitions  as  to  re- 
cognizances. The  defendant  moved  for  a  nonsuit,  as  of  a 
previous  term,  supporting  his  motion  by  affidavits  of  a 
previous  agreement  and  order  of  discontinuance  by  the 
plaintiffs ;  which  motion  was  granted,  and  nonsuit  entered 
nunc  2))'0  tunc.  It  appearing  that  the  statute  requisitions 
had  not  been  complied  with;  held,  the  judgment  must  be 
reversed  for  want  of  jurisdiction,  the  alleged  discontinu- 
ance at  a  previous  term  being  entirely  immaterial. 


2 


§  155.  But  it  is  not  a  matter  of  course  to  dismiss  an 
appeal  for  this  cause.^  Thus  it  is  hold  erroneous  to  dismiss 
an  appeal  on  account  of  a  defect  in  the  bond,  when  the 
appellant  offers  to  execute  a  new  and  sufficient  bond  and 
proceed  to  trial  forthwith.''  So  where  it  appears  to  the 
appellate  court  that  the  surety  is  insufficient,  such  court 
may  require  a  new  recognizance.'  So  if  the  appellant 
does  everything  required  of  him  by  the  statute  to  perfect 
his  appeal,  but  the  magistrate  neglects  to  indorse  his 
satisfiiction  as  to  the  surety ;  the  appeal  ought  not  to  be 
dismissed.^  So,  in  Illinois,  an  appellant  from  a  justice  of 
the  peace,  in  a  trial  of  the  right  of  property,  having 
filed  a  defective  bond,  may  have  leave  to  amend  it  in  the 
appellate  court.^ 

§  156.  Questions  have  arisen  respecting  the  payment  of 
fees,  as  a  necessary  condition  of  appeal. 

•  Johnson  v.  Barber,  4  Gilm.  1 ;        «  Appleton  v.  Turrentine,  19  Ala. 

Watspn  V.  Thrall,  3  ib.  69.  700. 

2  Varney  v.  Caswell,  3  Wis.  744.         »  state  v.  Lavally,  9  Mis.  834. 

3  Maynard  v.  Hoskins,  8  Mich.        ^  Shiff  d.  Brownell,  4  Wis.  SSo. 
81  7  Patty   V.  Winchester,   20    111. 

261. 


762  THE   LAW    OF   NEW    TRIALS.  [CH.  XXI. 

§  157.  All  ofter  to  pay  fees,  -when  the  appeal  papers 
shall  be  made  out,  is  not  a  tender  of  the  fees.  The  justice 
is  not  bound  first  to  make  out  his  papers,  and  then  rely 
on  having  his  fees  paid  afterwards.^ 

§  158.  The  judgment  below  was  afRrrned  according  to 
the  rule  of  court,  because  the  appellant  failed  to  pay  the 
fees  and  have  the  appeal  papers  filed.  To  obtain  a  trial, 
he  afterwards  made  aflidavit,  that  he  was  sick  in  bed  at 
the  time  and  was  unable  to  attend  to  the  payment ;  but 
it  appeared,  that,  when  the  judgment  was  aflirmed,  his 
attorney  was  present  and  made  no  objection.  Held,  the 
affidavit  did  not  sufficiently  show  that  the  sickness  of  the 
appellant  prevented  the  attorney  from  attending  to  his 
case,  and  the  judgment  was  allowed  to  stand.^ 

§  159.  In  reference  to  successive  appeals,  it  is  held  that  a 
party  cannot  appeal  a  second  time,  the  first  appeal  being 
dismissed,  from  the  same  judgment.^ 

§  160.  A  defendant  in  equity  appealed  from  a  decree  in 
favor  of  the  plaintifl",  and  gave  bond  to  prosecute  his 
appeal ;  and  afterwards  moved  the  court  to  open  the 
decree  and  grant  a  hearing,  which  motion  being  over- 
ruled, he  appealed  from  this  decision  also.  Held,  as  the 
decision  of  such  a  motion  rested  in  the  sound  discretion 
of  the  court  below,  the  second  appeal  must  be  dismissed, 
but  the  appellate  court  would  not  order  the  court  below  to 
carry  the  first  decree  into  execution,  until  the  first  appeal 
had  been  heard.* 

§  161.  A  decree  of  the  Circuit  Court  of  the  United 
States,  in  a  suit  to  enjoin  infringement  of  a  patent,  after 
reciting  that  13.  was  the  inventor  of  the  machine,  and  that 

'  People  V.  Harris,  9  Cal.  571.  »  Brill  v.  Meek,  20  Mis.  3o8. 

2  McMiinus  V.  Ilurncs,  G  Clarke        *  Wylie  v.  Coxc,  14  How.  1. 
(Iowa),  l.VJ. 


en.  XXI.]  APPEAL.  763 

his  patent  had  been  duly  assigned  to  the  plaintiff,  dis- 
missed the  bill,  on  the  ground  that  the  defendant  used  his 
machine  under  a  license  from  the  patentee.  The  plaintiff 
appealed  to  the  Supreme  Court,  who  reversed  the  decree. 
Held,  the  defendant  could  not  afterwards  appeal  from  so 
much  of  the  decree  of  the  Circuit  Court  as  recited  the 
invention  and  the  assignment.^ 

§  162.  In  Indiana,  if  a  suit  be  brought  to  the  Supreme 
Court  a  second  time  on  appeal,  only  the  proceedings  since 
the  cause  was  remanded  can  be  examined.^ 

§  163.  After  an  appeal  from  the  judgment  of  a  justice 
of  the  peace,  judgment  in  the  Circuit  Court,  judgment 
reversed  by  the  Supreme  Court  and  remanded  for  another 
trial;  it  is  too  late  for  a  motion  in  the  Circuit  Court  to 
reject  the  pleas  because  not  filed  until  after  the  appeal, 
or  to  dismiss  the  appeal  because  the  justice  had  not  filed 
the  papers  in  time.^  And  where  judgment  had  been  ren- 
dered by  a  justice  for  the  plaintift',  a  new  trial  granted,  an 
appearance  by  the  parties,  a  continuance  at  the  instance 
of  the  plaintiff',  judgment  again  for  the  plaintiff,  and  an 
appeal  by  the  defendant;  the  court  refused  to  set  aside 
the  appeal,  on  the  aflidavit  of  the  plaintiff,  that  the  first 
judgment  was  rendered  in  his  absence,  and  that  the  new 
trial  was  granted  without  his  knowledge.'' 


>  Coruiug  I'.  Troy,  &c.,  15  IIow.        ^  Abel  v.  Burgctt,  4  Blackf.  5tl. 
451.  *  Jones  V.   Rodman,   4  Blackf. 

2  Ilobson  V.  Doe,  4  Blackf.  487.     493. 


764 


THE    LAW    OF   NEW    TRIALS. 


[on.  XXII. 


CHAPTER  XXII. 


AUDITA  QUERELA. 


1.  Dcfiuition  ;  for  the  most  part 
obsolete. 

2.  As     connected    with     other 
modes  of  revision. 

6.  General  natnre  and  objects. 
8.  Lost  by  neglect. 


9.  Absent  defendant ;  default. 
12.  Imprisonment. 
15.  Payment  of  judgment. 
18.  Parties. 
21.  Practice. 


§  1.  Audita  querela  is  defined  as  "a  writ  applicable  to 
the  case  of  a  defendant  against  whom  a  judgment  has  been 
recovered  (and  who  is  therefore  in  danger  of  execution  or 
perhaps  actually  in  execution),  grounded  on  some  matter 
of  discharge  which  happened  after  the  judgment.  It  is  a 
remedial  process,  which  bears  solely  on  the  wrongful  acts 
of  the  opposite  party,  and  not  upon  the  erroneous  judg- 
ments or  acts  of  the  court.  It  will  not  lie,  therefore, 
where  the  cause  of  complaint  is  a  proper  subject  for  a  writ 
of  error.  It  is  in  the  nature  of  an  equitable  suit — a  regu- 
lar suit,  in  which  the  parties  may  plead,  take'  issue,  &c. 
In  modern  practice,  it  is  usual  to  grant  the  same  relief  on 
motion. "'((() 

'  Bouv.  Law  Diet. ;  Whart.  Law  210;  Chambers  v.  Neal,  13  B.  Men. 
Diet.  See  White  v.  Clapp,  8  Allen,  256  ;  Job  d.  Walker,  3  Md.  129  ; 
283;  Marsh  v.  Haywood,  6  Humph.     McDonald  v.  Falvey,  18  Wis.  571. 


(a)  The  audita  querela  is  superseded,  in  Maryland,  by  motion.  Hus- 
ton V.  Same,  20  Md.  SO.o.  Audita  querela  is  not  an  action  of  tort.  Stone 
V.  Chamberlain,  7  Gray,  206.  It  will  be  seen  that  nearly  all  the  cases 
cited  have  occurred  in  the  State  of  Yermont,  where  this  writ  seems  to 
be  a  favorite  remedy.  It  is  truly  remarked  by  the  court  of  that  State, 
that  the  writ  of  audita  querela  is  an  important  remedial  and  ecputable 
process,  and  should  be  allowed,  where  an  execution  has  been  irregularly 
issued,  from  which  the  party  ought  to  be  relieved ;  and  it  should  at  least 


en.  XXir.]  AUDITA    QUERELA.  765 

§  2.  This  remedy  may  be  considered  in  connection  with 
other  modes  of  revision,  besides  that  of  a  simple  motion. 


be  a  concurrent  remedy  with  relief  on  motion.    Porter  v.  Vaughn,  24 
Yt.  211. 

The  following  case  recently  occurred  in  Pennsylvania : — 

Commonwealth  v.  William  Berger.  Opinion  by  Paxson,  J.  March 
4,  1871. 

This  was  a  rule  to  show  cause  why  the  judgment  in  the  above  case 
should  not  be  stricken  off.  The  said  judgment  was  obtained  March  20th, 
1868,  in  a  suit  brought  upon  a  forfeited  recognizance,  and  is  entirely 
regular.  On  the  28th  of  January,  1869,  the  governor  of  this  common- 
wealth remitted  the  said  recognizance.  There  can  be  no  doubt,  under 
the  authority  of  Commonwealth  v.  Shick,  11  P.  F.  S.  495,  of  the  power 
of  the  governor  to  remit  a  recognizance  at  any  time  before  the  money 
has  actually  been  made  upon  the  execution.  It  is  also  a  part  of  the  his- 
tory of  this  case,  that  the  defendant,  in  order  to  obtain  the  full  benefit 
of  the  aforesaid  remission  of  the  recognizance,  and  to  procure  such  order 
or  decree  as  would  destroy  said  judgment  for  the  purposes  of  execution 
and  lien,  obtained  a  writ  of  audita  querela  in  this  court,  in  which  the 
commonwealth  was  made  the  defendant.  This  writ  was  served  by  the 
counsel  for  the  above  defendant  upon  the  counsel  of  record  for  the  com- 
monwealth in  the  above-stated  action.  Judgment  was  taken  against  the 
commonwealth  in  the  audita  querela  by  default,  for  want  of  an  appear- 
ance, which,  so  far  as  the  record  shows,  ended  the  proceedings  in  that 
case.  We  are  now  asked  to  strike  off  the  judgment  in  the  suit  upon  the 
recognizance,  as  a  proper  and  logical  result  of  the  action  of  the  governor 
above  referred  to,  and  of  the  judgment  upon  the  audita  querela. 

The  latter  writ,  though  seldom  used  in  practice,  is  not  obsolete,  as  was 
at  one  time  supposed,  and  has  occasionally  been  resorted  to  in  this  and  a 
number  of  other  States.  It  is  too  late  to  question  the  right  to  issue  such 
writ  in  a  case  where  the  defendant  has  a  defence  which  he  has  had  no  day 
in  court  to  plead.  But  every  relief  that  could  be  obtained  by  audita 
querela  is  now  grantable  upon  motion.  The  latter  more  simple  and 
speedy  form  of  proceeding  has  driven  this  ancient  and  cumbrous  remedy 
out  of  general  practice.  The  application  of  the  unused  machinery  of 
the  law  may  be  compared  to  the  firing  of  a  piece  of  rusty  ordnance. 
The  danger  is  greater  to  those  who  use  it  than  to  those  against  whom  it 
is  directed.  In  this  case  the  proceedings  upon  the  audita  querela  are 
defective,  because — 

1.  The  writ  was  not  served  upon  the  defendant  therein,  but  upon  a 
member  of  the  bar. 

2.  Judgmeijt  by  default  for  want  of  an  appearance  was  entered  against 


766  THE    LAW    OF    NEW    TRIALS.  [CII.  XXII. 

§  3.  Matter  of  error^  wbetlicr  iu  law  or  fact,  will  not 
sustain  it.'(rt) 

§  4.  The  rule,  that  the  denial  of  an  appeal  by  a  justice 
of  the  peace,  from  a  judgment  rendered  in  his  court  in  a 
case  which  by  law  is  appealable,  is  sufficient  ground  for  set- 
ting aside  the  judgment  on  audita  querela,  is  not  changed 
by  a  statute  introducing  the  new  remedy  of  a  petition.^ 

§  5.  Where  an  execution  has  been  issued  from  a  court 
of  law,  this  writ  cannot  be  sustained  to  vacate  it,  or  sus- 

'  School,  &c.'y.Rood,  1  Williams,  ^  Edwards  v.  Osgood,  33  Vt.  224. 
214. 

the  defendant  without  any  declaration  having  been  filed  by  the  plaintiff. 
Audita  querela  is  an  independent  suit,  the  pleadings  are  as  in  other 
cases,  and  damages  may  be  recovered  against  the  defendant  therein.  But 
even  if  a  declaration  had  been  filed,  this  judgment  would  still  be  erro- 
neous, for  the  reason  that  judgment  by  default  for  want  of  an  appearance 
cannot  be  taken  in  an  audita  querela.  The  common  law  abhors  ex  parte 
proceedings,  and  recognizes  no  such  thing  as  a  judgment  for  want  of  an 
appearance.  Such  judgment  with  us  rests  entirely  upon  statute,  and 
there  is  no  statute  in  Pennsylvania  which  authorizes  it  in  an  audita 
querela.  By  the  old  practice  the  remedy  for  non-appearance  of  the  de- 
fendant to  such  writ  was  by  distress  infinite.  Clerk  v.  Moore,  2  Salk. 
92.  Under  our  practice  the  plaintiff  would  probably  be  allowed  to  enter 
a  common  appearance  for  the  defendant,  and  then  rule  him  to  plead  as  in 
other  cases.     Lynd  v.  Benjamin,  2  Miles,  1 72. 

3.  Audita  querela  does  not  lie  against  the  commonwealth. 

Those  who  are  curious  to  examine  the  old  law  upon  this  subject  will 
find  it  in  3  Viner's  Abridg.  345 ;  1  Bacon's  Abridg.  309 ;  1  Comyn's 
Digest.  785 ;  while  the  modern  authorities  are  well  collected  in  Troubat 
and  Haly's  Pr.,  vol.  i.,  part  ii.,  p.  11G4. 

The  audita  querela  being  an  independent  suit,  it  follows  that  we  can 
make  no  order  in  this  proceeding  in  any  way  affecting  that  case.  It  is  a 
sufiBcient  answer  to  the  present  application  that,  the  judgment  being  free 
from  fraud  and  lawfully  entered,  there  is  no  power  in  this  court  to  strike 
it  off 

Rule  discharged. 

(a)  Audita  querela  does  not  lie  to  correct  an  erroneous  taxation  of 
costs.    Goodrich  v.  Willard,  11  Gray,  380;  Clough  v.  Brown,  38  Vt.  179. 


en.  XXII.]  AUDITA   QUERELA.  707 

pcnd  its  operation,  on  the  ground  that  it  has  been  enjoined 
by  a  court  of  chancery.  The  remedy  is  by  application  to 
that  court. '(a) 

§  6.  Audita  querela,  though  authorized  by  statute,  is 
derived  from  the  common  law,  and  is  governed  by  the 
rules  of  the  conmion  law  as  to  misjoinder,  and  })artics  and 
causes  of  action,  and  as  to  its  proceedings,  mode  of  trial, 
and  the  rendition  and  effect  of  final  judgment.^ 

§  7.  It  is  maintainable  as  well  quia  timet  as  for  one  actu- 
ally in  execution.3  Thus  (in  Vermont)  an  execution  issued 
by  a  justice  of  the  peace  for  more  than  $53,  and  returnable 
in  sixty  days  instead  of  one  hundred  and  twenty  days,  is 
irregular  and  void.  And  the  writ  of  audita  querela  is  a 
proper  remedy  to  set  aside  the  execution,  though  the  offi- 
cer has  not  called  upon  the  debtor  for  the  execution,  nor 
made  any  effort  to  collect  it,  if  sixty  days  from  the  date 
of  the  execution  have  not  expired.* 

§  8.  A  party  is  not  entitled  to  this  relief,  when  he  has 

•  Porter  v.  Vaughn,  24  Vt.  211.         ^  Glover  v.  Chase,  1  WiUiams, 
2  Johnson -o-PUmpton,  30  Vt. 420.     533. 

*  Hovey  v.  Niles,  2G  Vt.  541. 

(a)  A  motion  to  compel  a  plaintiff  who  seeks  to  maintain  audita  que- 
rela, together  with  a  bill  in  equity,  upon  the  same  cause  of  action,  to 
elect  between  his  remedies,  will  not  be  entertained,  where  both  cases 
have  been  reserved  after  hearing  to  be  determined  by  the  full  court,  with- 
out objection  by  the  defendant.  The  plaintiff,  having  recovered  judg- 
ment against  the  defendant,  levied  execution  upon  an  equity  of  redemp- 
tion conveyed  by  the  defendant  in  fraud  of  creditors;  but,  through  failure 
to  bring  suit  within  a  year  to  recover  the  land,  the  levy  became  iueffec- 
tuah  The  defendant  afterward  sued  out  a  writ  of  review  of  the  judgment, 
and  obtained  judgment  against  the  plaintiff,  under  Kev.  Sts.,  c.  99,  for 
the  amount  of  the  execution,  and  took  out  and  levied  execution  upon  the 
plaintiff's  land.  Held,  the  plaintiff  could  maintain  neither  audita  que- 
rela, nor  a  bill  in  equity,  for  relief  from  the  judgment  in  review  and 
execution  thereon.     Barker  v.  Walsh,  14  Allen,  172. 


768  THE   LAW    OF   NEW    TRIALS.  [ciI.  XXII. 

had  a  legal  opportunity  to  avail  himself  of  the  matters  of 
defence  set  forth  in  his  complaint,  or  when  the  injury,  of 
which  he  complains,  is  attributable  to  his  own  neglect. 
Thus  when  a  collector  of  taxes  is  summoned  by  the  town 
before  a  justice  of  the  peace,  to  show  cause  why  an  extent 
should  not  issue  against  him  for  arrears  of  taxes,  and  he 
appears,  and  the  justice,  upon  hearing,  decides  to  issue  an 
extent ;  the  collector  cannot  have  relief  by  audita  (jucrela, 
by  showing  that  he  did  not  receive  proper  notice  of  the 
proceedings  before  the  justice,  or  that  there  was  not  a  legal 
grand  list,  or  that  there  was  no  legal  rate  bill  and  warrant 
committed  to  him  for  collection — these  being  all  proper 
subjects  of  inquiry  and  adjudication  by  the  magistrate.^ 

§  9.  "When  the  defendant,  in  a  suit  commenced  before  a 
justice  of  the  peace,  was  without  the  State  at  the  time  the 
writ  was  served,  and  had  no  notice  of  the  pendency  of  the 
suit,  and  judgment  was  rendered  against  him  by  default, 
without  any  security  being  given  by  recognizance,  as  re- 
quired by  statute,  conditioned  that  the  plaintitf  would 
refund  such  sum  as  might  be  recovered  by  the  plaintiff 
upon  writ  of  review ;  the  defendant  may  have  a  remedy 
by  audita  querela.^  So,  in  Massachusetts,  audita  querela 
may  be  maintained  by  a  judgment  debtor  residing  out  of 
the  commonwealth,  and  not  served  with  process,  to  set 
aside  an  execution  taken  out  by  the  creditor  without  first 
filing  the  bond  required  by  Rev.  Sts.,  c.  92,  §  6,  even  after 
the  execution  has  been  levied  upon  his  real  estate  and 
returned  satisfied.^((2) 

»  Griswold  U.Rutland,  23  Vt.  324.     Eastman  t.  "Waterman,  26  ib.  494. 

2  Alexander   v.  Abbott,    21   Vt.     See  Marvin  v.  Wilkius,  (>  Aik.  107. 

476  ;  Wliitney  v.  Silver,  23  ib.  634 ;        »  Dingman  v.  Myers,  13  Gray,  1. 


(a)  If  a  writ,  brought  upon  a  just  claim,  is  served  by  leaving  a  sum- 
mons at  the  debtor's  last  and  usual  jjlace  of  abode,  and  he,  though  know- 
ing of  the  action,  never  receives  the  summons,  and  afterwards  commences 
proceedings  in  insolvency,  and  does  not  appear  to  defend  or  procure  a 
continuance  of  the  action ;  he  cannot  maintain  an  audita  querela  to  set 
aside  the  judgment.     White  v.  Clapp,  8  Allen,  2b3. 


CU.  XXII.]  AUDITA    QUERELA.  769 

§  10.  A  suit  was  commenced  against  a  non-resident, 
who  had  no  notice  of  it.  The  suit  was  entered;  an  attor- 
ne}',  not  employed  by  the  defendant,  entered  an  appearance 
for  liini;  and  judgment  was  rendered  against  him,  without 
proof  of  notice,  and  without  giving  a  bond  to  repay  to  the 
defendant  such  sum  as  might  be  recovered  by  him  on 
review.  Held,  audita  querela  was  not  the  proper  remedy.^ 
And  audita  querela,  brought  to  set  aside  a  judgment  for 
want  of  notice  of  the  commencement  and  pendency  of  a 
suit,  cannot  be.  sustained  in  contradiction  of  the  officer's 
return,  this  being  conclusive.^ 

§  11.  Where  the  plaintiff  in  a  justice  suit  has  been  led 
by  the  defendant  to  suppose  that  the  suit  would  be  de- 
fended, and  accordingl}^,  on  the  return  of  the  writ,  it 
beino;  inconvenient  then  to  remain  and  attend  to  the  trial, 
in  good  faith  applies  for  and  obtains  a  continuance,  still 
supposing  that  the  defendant  will  appear  and  claim  trial ; 
the  fact,  that  the  defendant  does  not  appear  on  the  day 
when  such  continuance  is  granted,  is  not  sufficient  to 
sustain  audita  querela  to  set  aside  a  judgment  for  the 
plaintiff,  subsequently  rendered  by  default.^ 

§  12.  Audita  querela  lies  by  a  person  imprisoned  under 
an  execution,  in  which,  by  a  mistake  of  the  clerk,  the 
date  of  the  judgment  is  erroneously  stated,  and  the  officer 
thereby  required  to  collect  more  interest  than  is  due.^ 

§  13.  A  debtor,  having  been  imprisoned  by  virtue  of  an 
execution,  was  admitted  to  the  liberties  of  the  prison,  and 
subsequently  obtained  a  discharge  as  a  bankrupt,  but  the 
creditor  refused  to  discharge  him  from  imprisonment,  or 
to  consent  to  his  going  at  large.     Held,  the  debtor  could 

'  Spaukling  v.  S-nMft,  18  Vt.  214.     See  Paddlefora  v.  Bancroft,  23  ib. 
2  Withcrell  v.  Goss,  26  Vt.  748.      529. 

»  Aldiich  V.  Bouett,  33  Vt.  202.        *  Stone  v.  Chamberlain,  7  Graj-, 

20G. 

49 


770  THE    LAW    OF   NEW    TRIALS.  [CII.  XXII. 

not  maintain  audita  querela  against  the  creditor  to  dis- 
charge him,  but  must  judge  for  himself,  whether  his  dis- 
charge would  justify  him  in  going  at  large,  and  act  accord- 
ingly.^ But,  if  the  debtor  bo  actually  in  prison,  he  may 
sustain  such  process  in  order  to  obtain  liis  liberty. ^ 

§  14.  The  liability  of  bail,  by  indorsing  his  name  upon 
the  writ,  is  a  liability  iipon  contract,  within  the  Rev.  Sts. 
of  Vermont,  c.  28,  §  63 ;  and  an  execution  issued  against 
the  body  of  such  bail,  upon  a  judgment  against  him  on 
scire  facias,  will  be  set  aside  on  audita  querela.^ 

§  15.  AYhere  satisfaction  has  been  made  on  an  execu- 
tion, a  bill  for  an  injunction  to  restrain  a  second  execution 
is  not  the  proper  remedy,  but  a  motion,  on  notice,  in  the 
nature  of  a  writ  of  audita  querela,  to  call  in  the  execution, 
and  have  satisfaction  entered  of  record.* 

§  16.  A  tender  of  the  amount  due  upon  an  execution, 
and  a  refusal  to  receive  it,  may  entitle  the  debtor  to  an 
audita  querela;  but  not  unless  it  is  kept  good  and  the 
money  brought  into  court,  which  must  appear  affirma- 
tively by  the  declaration.* 

§  17.  Audita  querela  will  not  lie,  in  Vermont,  to  set 
aside  an  execution,  issued  on  a  judgment  rendered  by  the 
county  court,  when  the  only  grounds  of  complaint  are, 
that  the  judgment  was  rendered  by  default,  in  an  action 
on  a  note,  and  that  the  plaintiff  had  neglected  to  indorse 
upon  the  note  certain  payments  which  the  complainants 
had  made,  but  took  judgment  for  the  face  of  the  note, 
without  deducting  any  payments,  and  that  the  clerk,  in 
making  up  the  judgment,  had  made  an  error  in  the  com- 

>  Goulds.  Mathewson,  18  Vt.  Of).         «  Mcl{:io  v.  Davis,  5  Jones  Eq. 
2  Comstock  V.  Grout,  17  Vt.  512.     140  ;  Parker  v.  Jones,  ib.  27G. 
■i  Stou-hton  V.  Barrett,  20  Vt.  385.        *  Perry  v.  Ward,  20  Vt.  93. 


CH.  XXII.]  AUDITA    QUERELA.  771 

putation  of  interest,  whereby  execution  had  issued  for  a 
larger  sum  than  actually  appeared  due  on  the  note.'(a) 

§  18.  All  the  parties  to  a  judgment  complained  of  must 
join  in  the  writ.^  But  a  joint  action  of  audita  querela 
cannot  be  maintained  by  a  principal  defendant,  and  a 
trustee,  to  vacate  the  judgments  rendered  against  them 
respectively,  when  their  grounds  of  complaint  are  wholly 
different,  and  the  judgments  if  vacated  must  be  vacated 
on  different  grounds.^ 

§  19.  When  the  basis  of  an  audita  querela  is  altogether 
personal,  it  will  die  with  the  person,  and,  in  such  ease,  the 
bail  upon  the  recognizance  cannot  be  held.  But  an  audita 
querela,  when  it  goes  to  the  foundation  of  the  judgment, 
may  be  prosecuted  by  executors  and  administrators.* 

§  20.  In  Maryland,  the  affidavit,  on  a  rule  to  show  cause, 
in  a  proceeding  of  the  nature  of  an  audita  querela,  may 
be  made  by  another  person,  as  well  as  by  the  defendant.'* 

§  21.  A  judgment  rendered  by  a  justice  of  the  peace 
against  an  insane  person,  who  had  a  guardian,  but  whose 
guardian  was  not  notified  of  the  suit,  and  who  has  no 
guardian  appointed  for  him  by  the  court,  will  be  vacated 
upon  audita  querela.^ 

§  22.  A  judgment  was  rendered  by  a  justice  of  the  peace, 

•  Perry  v.  Ward,  18  Vt.  120.  *  Conn.,  &c.  v.  Bliss,  24  Vt.  411. 

2  Herrick  v.  Orange,  &c.,  1  Wil-  «  Job  v.  Walker,  3  Md.  139. 

liams,  584.  6  Lincoln  v.  Flint,  18  Vt.  247. 
»  Johnson  v.Phinpton,  30  Vt. 420. 

(a)  Where  a  petition  for  a  writ  of  audita  querela  averred  an  agree- 
ment to  accept  a  certain  sum  in  compromise  of  a  judgment  for  a*  larger 
amount,  and  an  actual  payment  of  the  greater  part,  with  a  tender  of  the 
balance ;  it  was  not  error  to  refuse  the  writ,  as,  to  discharge  the  judg- 
ment, the  agreement  nmst  be  fully  executed.  Kean  v.  Vaughan,  48 
Penn.  477. 


772  THE   LAW    OF   NEW    TRIALS.  [CH.  XXII. 

against  an  infant,  who  appeared  by  attorney,  and  the  de- 
fendant appealed.  While  the  case  was  pending  in  court, 
the  infant  became  of  age,  the  attorney  withdrew  his  ap- 
pearance, and  judgment  thereupon  was  rendered  by  defoult. 
Hold,  audita  (piorela  would  not  lie  to  vacate  such  judg- 
ment, it  being  not  void,  but  voidable.* 

§  23.  If  the  plaintiff,  in  an  audita  querela  to  set  aside 
an  execution,  desire  to  set  it  aside  on  the  ground  that  the 
judgment  was  entered  on  Sunday,  which,  as  appears  from 
the  exceptions,  was  the  day  on  which  the  trial  was  in  fact 
concluded,  and  the  judgment  rendered;  he  should  by  his 
declaration  advertise  the  defendant  of  that  ground  of 
objection.^ 

§  24.  In  Vermont,  the  affidavit  of  the  truth  of  the  facts 
set  forth  in  a  writ  of  audita  querela  should  be  annexed  to 
the  writ,  or  become  part  of  the  process.  But  where  the 
judge  who  signed  the  writ  certified  that  the  facts  con- 
tained in  the  writ  were  sworn  to,  and,  on  the  trial,  the 
affidavit  of  the  attorney  of  the  complainant,  in  the  terms 
required  by  statute,  and  made  before  the  writ  was  certified 
as  a  supersedeas,  was  produced ;  it  was  held  to  be  a  suffi- 
cient compliance  with  tlie  statute.  The  minute  of  recog- 
nizance, in  such  case,  signed  by  the  judge,  is  matter  of 
record,  and  cannot  be  contradicted  by  parol.^ 

§  25.  The  duty  imposed  upon  the  judge  allowing  a  writ 
of  audita  querela  (Verm.  Comp.  Stat.  292,  §  8),  to  take  a 
copy  of  the  whole  process  and  recognizance,  "and  file  the 
same  in  the  office  of  the  county  clerk,  in  the  county  in 
which  such  writ  is  allowed,"  is  directory  in  its  character; 
and,  if  any  injury  results  from  the  neglect  of  the  judge  to 
so  leave  a  copy,  it  should  not  be  visited  upon  those  upon 

'  Barber  v.  Graves,  18  Vt.  290.  3  Hinman  v.  Swift,  18  Vt.  315. 

2  Oakes  v.  School  District,  'do  Vt. 
156. 


CH.  XXII.]  AUDITA    QUERELA.  773 

whom  no  duty  was  imposed,  or  obligation  rested  for  its 
performance.^ 

§  26.  In  Vermont,  where  the  county  court  determine 
that  a  writ  of  audita  querela  was  brought  for  delay,  they 
have  power,  under  the  statute,  to  award  to  the  defendant 
twelve  per  cent,  interest  on  his  judgment,  as  damages,  and 
double  costs.  Such  determination  is  one  resting  in  the 
discretion  of  the  county  court,  and  cannot  be  revised  by 
the  Supreme  Court  on  exceptions.^ 

§  27.  Where  the  county  court,  in  Vermont,  adjudged 
that  a  writ  of  audita  querela  was  brought  for  delay 
merely,  and  awarded  to  the  defendant  double  costs  and 
twelve  per  cent,  interest,  nnder  the  statute,  and  this  judg- 
ment was  affirmed  in  the  Supreme  Court,  upon  exceptions, 
and  thereupon  the  complainants  paid  the  double  costs  and 
twelve  per  cent,  interest ;  held,  there  was  no  irregularity 
in  taking  an  execution  upon  the  original  judgment  for  its 
full  amount,  without  regard  to  such  payment,  since  the 
payment  did  not  appear  upon  the  records  of  the  county 
court,  where  the  original  judgment  was  rendered.^ 

§  28.  On  audita  querela  brought  to  seek  relief  from  a 
judgment  and  execution,  no  order  can  be  entered  to  bring 
forward  on  the  docket  the  action  in  which  such  judgment 
and  execution  were  obtained.^ 

'  Kidder  v.  Hadlev,  25  Vt.  544.  »  Perry  v.  Ward,  30  Vt.  92. 

2  Perry  v.  Ward,  18  Vt.  120.  *  Foss  v.  WitUam,  9  Alien,  572. 


774 


THE   LAW    OF   NEW    TRIALS. 


[Cn.  XXIII. 


CHAPTER  XXIII. 


MANDAMUS. 


1.  Definition,  &c. 

2.  Does  not  lie  in  case  of  other 
remedies. 

4,  Parties. 

5.  As  connected    witli    appeal, 
error,  &c. 

8.  Designed  to  compel  action. 


10.  Lies   only  to  a   continuing 
tribunal. 

11.  Constitutional  questions. 
13.  In   reference  to   new   trial, 

exceptions,  &c. 
13.  Miscellaneous  cases. 


§  1.  Mandamus  is  defined,  as  a  "  command  issuing  in 
the  name  of  the  sovereign  authority  from  a  superior  court 
having  jurisdiction,  and  directed  to  some  person,  corpora- 
tion, or  inferior  court,(a)  within  the  jurisdiction  of  such 
superior  court,  requiring  them  to  do  some  particular  thing 
therein  specified,  which  appertains  to  their  office  and  duty, 
and  which  the  superior  court  has  previously  determined, 
or  at  least  supposes  to  be  consonant  to  right  and  justice."^ 

§  2.  But  it  is  further  said,  mandamus  is  only  to  be  re- 
sorted to  in  cases  of  the  last  necessity^  not  where  there  is 

'  Bouv.  Law.  Diet.;  Whart.  Law  Diet. 


(a)  A  mandamus  may  be  directed  to  \\\q  judges  of  the  District  Court 
instead  of  the  District  Court.  Ilollister  v.  Judges,  8  Ohio  (N.  S.),  201. 
Mandamus  will  lie  to  compel  a  clerk  of  the  court  to  deliver  the  transcript 
on  a  writ  of  error.  Davis  v.  Carter,  18  Tex.  400.  A  plaintifi"  who  has 
recovered  a  judgment  for  debt  and  costs,  and  has  received  the  debt  out 
of  court,  is  entitled  to  an  execution  for  the  costs,  and  the  court  will 
grant  a  mandamus  to  the  clerk,  comuuuiding  him  to  issue  such  execution, 
llegina  v.  The  Clerk,  &c.,  12  I]ng.  Law  and  Eq.  428.  It  is  of  course 
foreign  from  the  plan  of  the  present  work,  to  consider  the  process  of 
mandamus,  as  applied  to  any  other  than  judicial  proceedings.  Even 
with  this  limitation,  it  hardly  comes  under  the  head  of  revision,  or  bears 
any  analogy  to  a  new  trial.     (See  p.  781.) 


CH.  XXIII.]  MANDAMUS.  775 

another  eftectual  remedy.^(a)    And  the  writ  should  allege 
that  the  relator  has  no  other  remedy.^     (See  p.  781.) 

•  Cora.    V.  Clark,    Leg.    Intcll.,     v.  Wood,  35   Barb.  653;    27  Mis. 
Feb.  7, 1808;  Reading  v.  The  Com-    225;  4  Tex.  329. 
mouwealth,  11  Peun.  1S)G  ;    Greeu        2  School,  &c.  v.  People,  20  111. 

525;  Goolsby's  Case,  2  Gratt.  575. 

(a)  The  court  will  not  interfere  by  mandamus,  unless  there  is  a  clear 
legal  obligation  shown  to  perform  the  duty  required.  State  v.  Warren, 
3  A^room,  439.  The  pendency  of  another  suit  for  the  same  purpose 
would  be  a  good  plea  in  abatement  to  an  alternative  writ  of  mandamus; 
but  the  respondent  cannot  rely  upon  that  plea,  and  at  the  same  time  ask 
the  judgment  of  the  court  upon  the  merits  of  the  controversy,  by  setting 
up  the  facts  upon  which  he  relies,  as  showing  that  upon  the  merits  a  per- 
emptory writ  should  not  issue.  Silver  v.  People,  45  111.  224.  A  manda- 
mus will  not  be  granted  to  compel  the  judge  of  the  lower  court  to  sign  a 
bill  of  exceptions,  when  it  does  not  appear  that  the  bill  of  exceptions  had 
been  exhibited  to  the  adverse  party,  previously  to  its  being  presented  to 
the  court.  State  v.  Judge,  &c.,  13  La.  An.  481.  (See  p.  778.)  It  is  not 
the  proper  remedy,  where  an  inferior  court  refuses  to  enter  a  judgment  for 
costs.  The  party  complaining  has  a  right  to  appeal  from  such  defective 
judgment,  or  he  may  resort  to  his  action  for  the  costs.  Peralta  v.  Adams, 
2  Cal.  594.  Nor  does  it  lie  to  correct  an  erroneous  award  of  costs. 
State  V.  Judge,  &c.,  3  Wis.  809.  Mandamus  will  not  lie  to  compel  a 
judge  of  the  (Cal.)  District  Court  to  try  an  action  therein  begun,  but  by 
him  ordered  to  be  transferred  to  the  United  States  Circuit  Court.  Such 
order  is  not  void,  even  if  erroneous,  and  the  act  was  judicial,  not  ministe- 
rial. Francisco  v.  Manhattan  Ins.  Co.,  36  Cal.  283.  A  district  attorney 
cannot  have  a  peremptory  mandate,  to  compel  a  judge  of  the  District 
Court  to  enter  his  name  in  an  action  wherein  the  county  is  a  party,  if  he 
has  ceased  to  be  such  attorney,  and  the  action  has  been  disposed  of. 
Herringtou  v.  Sawyer,  36  Cal.  289.  On  an  affidavit,  on  a  motion  for 
new  trial,  where  there  is  something  upon  which  the  judge  is  called  to 
exercise  his  judgment;  the  question  is  one  addressed  to  his  discretion, 
and  the  Supreme  Court  has  no  authority  to  compel  him  by  mandamus  to 
rescind  his  order.  People  v.  Circuit,  17  Mich.  67.  One  court,  having 
adopted  a  rule  not  to  grant  mandamus  where  another  has  concurrent 
jurisdiction,  unless  some  good  reason  is  shown  for  not  making  the  appli- 
cation to  the  latter,  will  not  entertain  an  application  for  such  writ,  based 
merely  on  the  ground  that  the  judge  of  the  former  has  "  expressed  some 
opinion"  in  regard  to  the  matter  related.  State  v.  Haben,  22  Wis.  101. 
Mandamus  to  a  district  judge,  directing  him  to  fix  the  amount  of  a  release 
bond,  and  to  grant  au  order  for  the  release  of  certain  property  sequestered 


776  THE    LAW    OF   NEW    TllIALS.  [Cll.  XXIII. 

More  especially  it  is  never  resorted  to  for  the  j^roteciion  of 
individual  rights^  where  the  party  applying  for  it  has 
another  adequate,  specific,  legal  remedy.^  And  it  is  held 
■that  one  court  will  not  interfere  with  the  proper  jurisdic- 
tion of  another  in  granting  this  writ.  Thus  the  Supreme 
Court  of  ISTew  York  will  not,  by  mandamus,  compel  a 
Court  of  Common  Pleas  to  permit  a  cause  to  be  removed 
to  the  Circuit  Court  of  the  United  States,  the  latter  court 
having  itself  the  power  to  award  the  writ,  when  necessary 
to  the  exercise  of  its  jurisdiction.^ 

§  3.  It  is  further  said,  that  a  writ  of  mandamus  does 
not  issue  in  virtue  of  any  prerogative  power,  and,  m 
modern  practice,  is  nothing  more  than  an  ordinary  action 
at  law  in  cases  where  it  is  the  appropriate  remedy.^  Also, 
that  a  mandamus  ought  not  to  issue  except  to  compel 
performance  of  a  duty  clearly  defined  by  law,  involving 

'  White,  &c.,  23Vt.  478.  '  Kentucky a.Dennisou, 24 How. 

2  People  V.  Judges,  &c. ,  2  Denio,     66. 
197. 

iu  a  suit,  will  not  be  granted  at  the  instance  of  the  defendant  in  a  suit, 
where  the  suit  has  been  duly  and  legally  discontinued,  and  the  effect  of 
the  discontinuance  is  to  put  the  defendant  in  possession  of  the  property 
sequestered.  State  v.  Farrar,  20  La.  An.  99.  Where  every  essential 
fact  exists,  necessary  to  authorize  the  (Tenn.)  county  court  to  receive, 
file,  and  record  the  authenticated  copy  of  a  will,  and  issue  letters  testa- 
mentary thereon,  the  entering  up  of  the  proper  judgment  is  a  ministerial 
act,  and,  on  the  refusal  of  the  court  so  to  enter  up  judgment,  mandamus 
will  lie.  Williams  v.  Saunders,  5  Cold.  60.  The  (Ky.)  Circuit  Court 
may  by  mandamus  compel  the  county  court  to  levy  a  county  tax  to  pay 
a  bill  for  medical  services  rendered  a  poor  negro  woman  afflicted  with 
smallpox,  under  the  employment  of  the  county  judge.  Rodman  v.  Larue 
County,  3  Bush,  144.  Where  an  attorney  is  debarred  by  an  inferior 
court,  for  cause  over  which  it  has  no  jurisdiction,  a  writ  of  mandamus 
will  lie  from  the  higher  court  for  his  restoration.  Bradley,  7  Wall.  364. 
So  where  the  lower  court  decided  erroneously  on  the  testimony.  State 
V.  Kirke,  12  Fla.  278.  Mandamus  is  the  proper  remedy  to  compel  a 
circuit  judge  to  set  aside  a  judgment  rendered  against  a  party  in  his 
absence,  without  legal  notice.     People  v.  Bacon,  18  Mich.  247. 


cii.  xxiil]  mandamus.  777 

no  discretion,  nor  leaving  any  alternative.  The  petition 
should  state,  with  precision  and  distinctness,  all  the  cir- 
cumstances under  which  the  applicant  claims  the  right  to 
this  species  of  remedy,  and  all  the  objections  which  may 
be  anticipated  should  be  brought  to  view  and  answered.^ 
(See  p.  781.) 

§  4.  A  writ  of  mandamus  will  not  be  issued  on  the  ap- 
plication of  an  individual,  who  has  no  private  nor  parti- 
cular interest  in  the  matter,  independent  of  that  which 
he  holds  in  common  with  the  public."  Thus  one  applying 
for  a  mandamus,  to  compel  an  inferior  court  to  make  a 
rule  on  one  of  its  ministerial  officers,  must  clearly  show 
his  interest  in  the  subject  matter.^  So  where  the  court 
made  an  order,  dismissing  a  bill  as  to  one  of  the  com- 
plainants for  his  non-appearance;  and,  the  day  after,  the 
judge  in  open  court,  upon  his  own  suggestion,  and  with- 
out notice  to  any  of  the  parties,  inserted  therein  the  words, 
"without  prejudice:"  held,  a  mandamus  would  not  lie 
against  the  judge,  as  the  insertion  made  by  him  did  not 
affect  the  legal  rights  of  the  relator."  It  is  for  the  public 
officers,  exclusively,  to  apply  for  such  writ,  where  public 
rights  are  to  be  subserved.  Thus  a  mandamus  will  not 
be  granted,  commanding  county  commissioners  to  locate  a 
road,  although  it  may  be  their  duty  to  do  so,  on  the  peti- 
tion, merely,  of  one  of  the  original  petitioners  for  the  road, 
who  has  no  greater  interest  than  the  rest  of  the  commu- 
nity in  procuring  such  location.^ 

§  5.  Mandamus  cannot  be  substituted  for  an  ajJiJeal 
Thus,  in  California,  where  a  cause  has  been  remanded,  for 
the  court  below  to  determine  the  truth  of  the  allegations, 
and  that  court  refuses  to  grant  the  relief  to  which  the  in- 


'  Cunom  V.  Latimer,  4  Tex.  329.  *  The  State  v.  Larrabec,  3  Cliand. 

2  Poopl(M'.Tnspector,&c.,4Micli.  179. 

187;  2.-)  Maine,  2fll.  »  Sanirer    v.    County,    &c.,    25 

3  Fleming,  2  Wall.  759.  Maine,  291. 


778  THE    LAW    OF    NEW    TRIALS.  [CH.  XXIII. 

tervcnoi's  arc  entitled  according  to  tlic  opinion  delivered 
above,  if  true;  the  proper  remedy  is  by  ap})eal,  and  not 
mandamus.^  So  a  mandamus  will  not  be  granted  to  bring 
under  review  the  proceedings  of  an  inferior  court  on  the 
ground  of  error,  where  a  writ  of  error  will  lie.^  So  where 
the  defendant,  in  a  suit  commenced  in  the  Circuit  Court 
by  writ  of  attachment  under  the  statute  of  Michigan  (Rev. 
Sts.  506),  moved  the  court  to  quash  the  writ,  &c.,  because 
the  aflidavit  was  not  made  before  an  authorized  officer; 
and  the  court  thereupon  permitted  the  plaintiff  to  file  a 
new  affidavit,  and  then  refused  to  grant  the  defendant's 
motion:  held,  the  proceedings  by  attachment  being  under 
a  special  statute,  and  out  of  the  course  of  the  common 
law,  the  affidavits,  with  the  adjudication,  would  go  upon 
the  record,  and  be  removed  to  the  Supreme  Court  by  cer- 
tiorari ;  and  tlierefore  the  Supreme  Court  refused  to  grant 
a  mandamus  to  compel  the  Circuit  Court  to  quash  the 
attachment,  &c.^ 

§  6.  Upon  proceedings  in  error  a  mandamus  was  prayed 
for  but  refused,  to  compel  the  judge  of  the  court  below  to 
sign  a  bill  of  exceptions.  On  error  in  the  Supreme  Court, 
to  review  the  affirmation  of  the  original  judgment ;  held, 
the  refusal  of  the  mandamus  was  not  a  part  of  the  case 
for  review,  but  distinct  from  it."* 

§  7.  In  iTew  York,  a  mandamus  will  not  be  granted,  on 
the  suggestion  that  the  party  applying  wishes  to  bring 
error  to  the  court  of  errors,  in  a  case  where  it  is  well  set- 
tled that  the  court  of  errors  has  no  jurisdiction  to  grant 
a  mandamus.*  But  where  a  petition  to  the  county  court, 
for  commissioners  to  appraise  the  value  of  certain  lands 
sought  to  be  taken  for  the   conq»any,  filed  by  persons 

1  Lmllum  V.  Fourth,  &c.,  9  Cal.  ^  People  v.  Judges,  &c.,  1  Doug. 
7;  27  Mis.  225.  310. 

2  Williams^.  Judge,  &c.,  27 Mis.  *  Morgau  v.  Boyd,  13  Ohio  St. 
220.  27!).     Sec  p.  77."),  n. 

6  Elkiusy.Athearn,  2Deiiio,  181. 


CII.  XXIIl.]  MANDAMUS.  779 

claiming  to  be  a  corporation,  was  dismissed,  on  the  ground 
that  the  articles  did  not  show  sufficiently  where  the  prin- 
cipal place  of  business  of  the  company  was  located ;  and 
the  company  applied  to  the  Supreme  Court  for  a  writ  of 
certiorari^  which  was  refused:  held,  the  county  judge  had 
not  exceeded  his  jurisdiction  under  the  (California)  act  of 
1858  ;  and  that  the  proper  remedy  was  by  mandamus  from 
the  District  Court.'  So,  though  an  attachment  for  disre- 
gard of  an  injunction  is  in  form  a  punishment  for  con- 
tempt; it  is  in  substance  a  private  right,  and,  as  such, 
the  aid  of  a  superior  court  may  be  invoked.  Where  a 
judge  will  not  hear  an  application  for  an  attachment  for 
disregarding  an  injunction;  mandamus  will  issue,  to  com- 
pel him  to  act  according  to  his  discretion.^  So,  in  Ala- 
bama, a  wife  has  a  right  to  a  support  out  of  her  husband's 
estate,  pending  a  suit  for  divorce  against  him,  and  also  to 
such  sum  as  is  necessary  to  procure  solicitors;  and,  when 
this  right  is  denied  by  the  chancellor,  at  any  time  before 
final  alimony  is  set  apart  to  her,  a  mandamus  will  be 
awarded  from  the  Supreme  Court,  to  compel  him  to  make 
the  necessary  order,  as  there  is  no  other  adequate  and  spe- 
cific remedy .3  So  the  judgment  of  a  county  court,  in 
refusing  to  accept  the  report  of  road  commissioners,  is  not 
a  final  judgment  which  will  sustain  a  writ  of  error:  the 
proper  writ  is  a  mandamus.*  So  where  a  ministerial  duty 
devolved  upon  the  county  court,  but  that  court,  undertak- 
ing to  act  judicially,  did  not  perform  the  duty,  but  gave 
judgment  against  the  party  moving  such  performance;  the 
pro]icr  remedy  is  not  a  writ  of  error  or  supersedeas,  but  a 
mandamus.5  go^  iii  j^e^v  York,  a  mandamus  will  lie  to 
compel  the  justices,  and  the  jury  summoned  to  assess 
damages  for  taking  land  for  public  use,  to  make  return  of 


'  Spnn;rYalloy,v.tc.,17Cal.l33.  '  Phitto,  etc.   v.   McFarland,   13 

2  :\Ic'rcfd,  »tc. "«.  Fremont,  7  Cal.  Mis.  IGO. 

130.  *  Delaney  v.  GodJin,   13  Gratt. 

'     »  King,  27  Ala.  387.  266. 


780  THE    LAW    OF   NEW    TRIALS.  [CII.  XXIII. 

their  action  in  tlio  }uvmises,  and.  will  not  be  CLuasliod  oil 
the  ground  that  replevin  will  not  lie.^ 


§  8.  As  may  be  gathered  from  what  has  been  already 
said,  the  primary  object  of  this  process  is  to  compel  the 
inferior  tribunal  to  act.  As  expressed  in  a  late  case,  its 
office  is  to  "stir  up."^  Thus  when  an  inferior  judicial 
tribunal  declines  to  hear  a  case  upon  what  is  termed  a 
preliminary  objection,  which  is  purely  a  matter  of  law ; 
as  where  the  court  declined  to  go  into  the  merits,  in  a 
proceeding  to  contest  a  sheriff's  election,  because  the  party 
complaining  had  not  given  the  notice  required  by  statute : 
a  mandamus  will  lie  to  proceed  with  the  trial,  if  the  infe- 
rior court  has  misconstrued  the  law.^  And,  as  we  have 
seen  (p.  770),  a  mandamus  to  an  inferior  court  will  not  be 
granted,  unless  the  petition  alleges  facts  sufficient,  if 
proved,  to  show  that  such  court  has  omitted  a  manifest 
duty.  It  must  contain  not  only  the  affirmative  allegation 
of  the  proceedings  necessary  to  entitle  the  party  to  the 
process,  but  also  that  other  facts,  which  would  justify  the 
omission  complained  of,  do  not  exist.  Thus  a  mandamus 
to  the  county  commissioners  will  not  be  granted,  if  every 
statement  in  the  petition  therefor  may  be  true,  and  yet 
the  commissioners  be  in  no  fault.^  So  if  it  appear  in  the 
proceeding  by  mandamus,  that  the  district  judge  does  not 
refuse  to  render  a  judgment  upon  the  petition;  it  is  not 
in  the  power  of  the  Supreme  Court  to  compel  him  to 
render  the  particular  judgment  prayed  for.' 

§  9.  Mandamus  cannot  be  used  to  review  or  correct 


'  Trustees,  &c.,  1  Barb.  34.  <  Hoxie«.County,&c.,  25  Maine, 

2  Per  Woodward,  J.   School,  &c.  333. 

V.  Anderson,  45  Penn.  :590.  ^  gtate  v.  Judge,  &c.,  13  La.  An. 

3  Castello   V.   St.   Louis   Circuit  481. 
Court,  28  Mis.  2.j9. 


CII.  XXIII.]  MANDAMUS.  781 

judicial  errors.'(a)     It  docs  not  lie  to  inferior  tribunals,  to 
correct  their  errors  by  annulling  what  they  have  errone- 

'  Smyth  V.  Titcomb,  31  Maine,  272  ;  Reg.  v.  Dayman,  7  Ell.  &  B.  G72. 

(a)  See  p.  774,  u.  Under  Sts.  3  and  4  W.  IV.,  c.  90,  a  meeting  of  the 
rated  iuUabitants  of  the  parish  of  H.  was  held,  to  determine  whether  the 
provisions  of  the  act  sliould  be  applied  to  the  parish.  The  assent  of  two- 
thirds  of  the  voters  was  not  given.  AVithin  a  year,  a  meeting  was  held 
of  the  rated  inhabitants  of  a  district  of  the  parish,  to  determine  whether 
the  act  should  be  applied  to  that  district ;  when  two-thirds  of  the  voters 
assented.  A  rate  was  laid  upon  the  district  in  conformity  with  this.  S., 
one  of  the  parties  so  rated,  having  refused  to  pay  the  rate,  was  sum- 
moned before  the  justices,  when  he  objected  that,  the  latter  meeting 
having  been  held  within  a  year  of  the  former,  the  proceedings  were  void 
by  1 16,  and  the  rate  invalid.  The  parties  agreed  that  the  question  was, 
whether  the  two  meetings  were  substantially  the  same.  The  justices 
decided  in  the  affirmative,  and  refused  a  warrant  for  levying.  Held,  the 
question  was  properly  put  before  the  magistrates,  and,  they  having  de- 
termined it,  the  court  could  not,  on  a  rule  to  order  the  justices  to  issue 
a  distress  warrant,  review  their  decision.  Regina  v.  Dunn,  7  Ell.  &,  B. 
220.  A  district  board  of  works,  under  §§  109  and  227  of  the  metropolis 
local  management  act  (18  and  19  Vict.,  c.  120),  and  Sts.  11  and  12  Vict., 
c.  43,  summoned  a  gas  company  before  a  justice,  for  opening  ground 
without  the  consent  of  the  board.  The  company  defended  on  the  ground 
of  their  charter  and  certain  local  acts.  The  justice  stated,  that  he  con- 
sidered the  answer  valid,  and  that  the  summons  ought  to  be  dismissed ; 
but,  at  the  request  of  the  board,  he  refused  to  adjudicate,  stating  that 
he  did  so  in  order  that  the  opinion  of  the  higher  court  might  be  obtained. 
The  company  insisted  on  his  dismissing  the  summons.  A  rule  having 
been  obtained  by  the  board  for  an  order  directing  the  justice  to  adjudi- 
cate and  convict :  the  court  discharged  the  rule,  refusing  to  give  any 
opinion  upon  the  question,  and  holding  that  the  justice  must  act  upon 
his  own  view,  and  could  not  by  this  proceeding  obtain  the  opinion  of  the 
court ;  and  that  the  board,  having  requested  him  to  refuse  to  adjudicate, 
were  not  entitled  to  an  order  compelling  him  to  do  so.  Held  also,  that 
Sts.  11  and  12  Vict,  c.  44,  ?  5,  are  inapplicable  to  such  a  case.  Regina  v. 
Payuter,  7  Ell.  &  B.  328 ;  48  Eng.  L.  and  Vai  209.  Under  St.  1  and  2 
Vict.,  c.  110,  I  92,  which  directs  that  it  shall  be  lawful  for  the  insolvent 
debtors'  court,  if  there  be  a  surplus  after  satisfaction  of  the  debts,  to 
make  an  order  vesting  such  surplus  in  the  insolvent,  his  heirs,  &,c. ;  that 
court  acts  judicially  and  not  merely  ministerially.  Therefore,  where  a 
party  claimed  such  order  under  an  alleged  assignment  from  the  insolvent. 


782  THE   LAW    OF   NEW    TRIALS.  [CII.  XXIII. 

ousl}^  done,  nor  to  guide  their  discretion,  nor  to  restrain 
them  from  exercising  a  power  not  delegated  to  them.^ 
Thus  where  a  judge  dismisses  a  cause,  not  for  want  of 
jurisdiction,  but  on  the  ground  that  the  parties  cannot  by 
law  sustain  the  cause ;  a  mandamus  will  not  be  granted 
to  compel  him  to  hear  the  cause  again.^ 

§  10.  "With  reference  to  the  nature  of  the  tribunal  to 
which  a  mandamus  may  be  addressed,  as  continuing  or 
otherwise,  it  is  remarked,  in  a  recent  case — "  The  tribunal 
to  which  the  writ  is  asked  to  be  directed  is  not  a  perma- 
nent or  continuing  one,  but  it  is  summoned  to  sit  on  each 
particular  citation  of  a  poor  debtor,  and  may  consist,  in 
the  county  of  Providence,  of  any  judge  of  the  Supreme 
Court,  or  justice  of  the  court  of  magistrates,  in  the  city  of 
Providence  sitting  with  a  justice  of  the  peace,  and  in  the 

'  Dunklin,  &c.  v.  District  Coi;rt,        ^  Regina  v.  Eecorder,  &c.,  1  Eng. 
23  Mis.  440.  L.  and  Eq.  291. 

and  that  court,  upon  inquiry,  held  the  assignment  invalid  as  against 
other  claimants;  the  court  above  refused  to  issue  a  mandamus,  command- 
ing the  insolvent  debtors'  court  to  make  an  order  vesting  the  property 
in  the  alleged  assignee.  Regiua  v.  Law,  7  EU.  &  B.  366.  By  St.  18  and 
19  Vict.,  c.  120,  the  vestry  of  a  parish  may  pave  any  new  street,  and 
the  owners  of  the  houses  forming  the  street  shall,  on  demand,  pay  to  the 
vestry  the  amount  of  the  estimated  expenses;  such  amount  to  be  reco- 
vered before  two  justices,  on  summons,  who  are  to  hear  and  determine 
the  matter,  and  to  make  such  order  as  to  costs  or  otherwise  as  to  them 
seems  just.  The  owner  of  houses  in  a  street  having  been  summoned 
before  a  police  magistrate,  to  show  cause  why  an  order  for  the  payment 
of  his  share  of  the  estimated  expense  of  paving  the  street  should  not  be 
made  upon  him,  the  magistrate,  after  hearing  the  evidence,  dismissed  the 
complaint,  on  the  ground  tliat  the  street,  having  been  dedicated  to  the 
public,  as  a  highway,  before  the  passing  of  the  act,  was  not  "a  new 
street"  within  the  meaning  of  it.  On  a  motion  under  the  11  and  12  Vict., 
c.  44,  §  5,  calling  on  the  magistrate  to  show  cause  why  he  should  not 
hear  and  adjudicate ;  held  (Erie,  J.,  dissenting,  upon  the  ground  that  the 
decision  by  the  magistrate  was  of  a  fact  going  to  his  jurisdiction),  that 
he  had  done  so,  and  that  this  court  could  not  interfere.  Rcgina  v.  Day- 
man, 40  Eng.  L.  and  Eq.  67. 


CII.  XXIII.]  MANDAMUS.  783 

other  counties  of  tlic  State  of  any  two  justices  of  the 
peace.  The  tribunal  takes  its  jurisdiction  under  the  sta- 
tute, in  each  particular  case,  from  a  citation  duly  served 
upon  the  committing  creditor,  and  when  it  has  acted 
upon  that  citation  is,  so  to  speak,  dissolved.  The  two 
magistrates  declined  to  proceed  with  his  examination 
unless  upon  certain  conditions,  and  without  adjourning 
to  a  day  certain,  as  they  might  have  done,  rose;  and  as  a 
tribunal  upon  that  citation  discharged  themselves,  and 
the  creditor  cited,  from  it.  Without  a  fresh  citation  to 
the  creditor  it  is  difficult  to  see  how  the  magistrates  can 
act,  any  more  than  any  other  two  magistrates;  and  as 
none  has  been  taken  out,  and  the  old  one  is  not  now  pend- 
ing, I  cannot  see  what  there  is  for  the  mandamus  to  ope- 
rate upon."^ 

§  11.  A  statute  of  the  United  States  (March  3,  1863), 
provided  for  removal  to  the  United  States  Circuit  Court 
of  suits  brought  in  the  State  courts  for  acts  done  under 
authority  of  the  President  during  the  rel)ellion.  Held,  a 
constitutional  law ;  and  that  the  act  of  accepting  surety 
and  suspending  jurisdiction  by  the  State  court  was  one 
which,  upon  refusal  to  perform  it,  might  be  compelled  by 
mandamus.  The  following  distinctions  were  taken  by  the 
court:  "Would  the  issuance  of  a  writ  be  an  attempt 
to 'control  judicial  discretion,'  within  the  meaning  of  the 
(State)  law  ?  We  are  clear  that  it  would  not.  To  hold 
otherwise  would  be  to  relinquish  all  control  6ver  inferior 
judicial  tribunals  by  mandamus,  except  where  actual  cor- 
ruption is  shown.  Of  course  it  is  assumed  that  the  court 
acted  conscientiously,  and,  for  the  purpose  of  deciding 
this  question,  erroneously.  It  is  one  thing  to  compel  a 
court  to  take  jurisdiction,  or  to  relinquish  jurisdiction  of 
a  case ;  and  it  is  quite  another  thing,  having  compelled 
the  court  to  take  jurisdiction,  to  dictate  what  judgment  it 

'  Per  Ames,  C.  J.,  Ballou,  7  R.  I.  4G9. 


784  THE    LAW    OF    NEW    TRIALS.  [CII.  XXIII. 

shall  render  therein.  It  is  the  latter  kind  of  interference 
that  the  law  })rohibits.  We  are  not  asked  to  control  the 
judghicnt  of  the  court,  but  the  act  of  the  court  which  is  to 
follow  its  judgment.  The  one  is  '^iYioXXy  judicial^  the  other 
is  to  be  regarded  2(&  ministerial.  Tha  judgment  of  the  court 
has  already  been  rende7-ed,  and  no  mandamus  can  reach  or 
modify  it.  The  ultimate  act — of  receiving  or  refusing 
surety — which  is  to  follow  that  judgment,  must  depend, 
not  on  what  the  judgment  is,  but  what  it  should  have 
been.  It  would  be  strange,  indeed,  if  we  have  power  to 
compel  the  proper  court  to  take  jurisdiction,  and  have  not 
the  power  to  compelthe  improper  court  to  relinquish  juris- 
diction, or  to  do  a  necessary  act  in  order  to  the  exercise  of 
jurisdiction  by  the  proper  court."^ 

§  12.  Where  a  Court  of  Common  Pleas,  without  having 
power  BO  to  do,  set  aside  a  verdict  and  granted  a  new 
trial ;  a  mandamus  was  issued  to  compel  them  to  enter  a 
judgment  on  the  verdict.^  So  mandamus  lies,  to  compel  a 
referee  to  settle  exceptions;  and,  upon  due  allegations  and 
proof,  the  court  may  direct  the  referee  to  allow  or  refuse 
certain  specific  exceptions.^  But  a  mandamus  will  not 
lie  to  a  court  below,  requiring  it  to  set  out  in  a  bill  of 
exceptions  evidence  not  there  appearing;  the  matter  is 
within  the  discretion  of  the  court.^  i^or  to  compel  a 
judge  to  insert  in  a  bill  of  exceptions  instructions  which 
it  is  alleged  that  he  gave  to  the  jury,  when  he  returns  that 
he  has  settled  the  bill  of  exceptions  truly,  according  to  the 
facts  as  he  remembers  them.'  So  where  a  case,  by  consent 
of  counsel,  was  tried  before  a  private  individual  sitting  as 
judge ;  it  was  held,  that  a  mandamus  could  not  be  granted, 
to  compel  either  the  judge,  or  the  individual  who  took 
his  place,  to  settle  or  sign  a  bill  of  exceptions."     So  the 

'  The  State,  &c.    v.  The  Court,         ^  Peoi)lc  v.  Baker,  35  Barb.  105. 
&c.,  15  Ohio  St.  377.     Per  Welsh,         »  Jamison    v.    Reid,    3    Greene 

J.,  ib.  813.  (Iowa),  394. 

^  Cortleyou  v.  Teu   Eyck,  3  N.         ^  g,,ite  «.  Noi^gle,  13  Wis.  380. 
J.  45.  «  State  v.  Larrabee,  3  Wis.  783. 


OU.  XXIII.]  MANDAMUS.  785 

Supreme  Court  of  Gcori^ia  will  not  grant  a  writ  of  manda- 
mus or  prohil/ition  to  a  juduo  of  the  Superior  Court,  wLou 
acting  as  clianccUor,  to  restrain  Lim  from  hearing  and 
adjudicating  a  motion  made  before  him,  on  the  ground 
that  one  of  the  parties  has  excepted  to  his  decision  on  a 
point  made  before  him  during  the  hearing  and  progress  of 
such  motion,  and  has  sued  out  a  writ  of  error  thereon,  and 
filed  bond,  &c.,  in  accordance  with  the  statute;  before 
any  decision  has  been  had  upon  the  main  question  in- 
volved in  the  original  motion  made  before  him.^  So, 
under  the  laws  of  the  territory  of  Iowa,  bills  of  exceptions 
were  required  to  be  taken,  and  tendered  to  the  judge  for 
his  signature,  during  the  progress  of  the  trial,  although  he 
might  sign  them  afterwards  nunc  2)ro  tunc.  But  where  a 
bill  of  exceptions  appeared  to  have  been  signed  two  years 
after  the  trial ;  held,  they  were  rightfully  stricken  from 
the  record  by  the  appellate  court,  and  a  mandamus  to  the 
judge  to  sign  the  bill  7iunc  pro  time  was  properly  refused, 
especially  as  it  did  not  appear  that  the  exceptions  were 
taken  during  the  trial.^  And  where  one  bill  of  exceptions 
has  been  dismissed,  the  Supreme  Court  will  not  issue  a 
mandamus  to  the  circuit  judge,  to  certify  a  second  bill  of 
exceptions  in  the  same  case  and  for  the  same  cause.^ 

§  13.  In  N'ew  York,  where  referees  of  an  appeal  from  the 
report  of  county  commissioners  have  improperly  dismissed 
the  appeal  without  due  hearing;  the  remedy  is  not  by 
certiorari,  but  by  mandamus  to  the  referees,  directing  them 
to  hear  and  decide  tl;e  appeal  properly.^  But  mandamus 
does  not  lie,  to  compel  a  Circuit  Court  to  strike  a  cause 
from  the  docket,  on  motion,  on  the  ground  that  it  has 
been  discontinued  by  a  submission  to  arbitration  f  or  to 

'  Jones  V.  Dougherty,  11  Geo.  *  People  v.  Cortelyon,  3G  Barb. 

305.  1G4.     See  Davis  v.   Ma.\;well,   27 

^  Sliopparil  V.  AVilson,  G  IIow.  Geo.  368. 

260.  5  Garlington,  26  Ala.  170. 

3  Harris  v.  State,  3  Kelly,  290. 

50 


786  THE    LAW    OF   NEW    TRIALS.  [CH.  XXIII. 

compel  it  to  discharge  a  rule  of  reference,  as  that  was  in 
the  discretion  of  the  inferior  court. ^ 

§  14.  In  Alabama,  mandamus  from  the  Supreme  Court 
does  not  lie,  to  compel  the  chancellor  to  dismiss  a  cause, 
on  motion,  in  pursuance  of  a  written  agreement  between 
the  }iarties.-  But  if,  under  an  agreement  of  record,  a  party 
is  entitled  to  judgment,  and  the  court  below  allow  the 
other  party  to  amend  and  go  on  with  the  case ;  mandamus 
lies,  to  compel  the  court  to  follow  the  agreement.^ 

§  15.  In  Georgia,  for  the  refusal  of  the  ordinary  to 
allow  an  appeal,  mandamus  is  the  only  remedy.^  So  the 
remedy  of  an  appellant,  seeking  the  removal  of  a  case 
from  the  State  District  Court  to  the  United  States  Court, 
is  by  application  to  the  Supreme  Court  for  a  mandamus.' 

»  Ferris  v.  Munn,  2  N.  J.  IGl.  "  Grcsliain  v.  Pyron,  17  Goo.  2G3. 

2  Rowland,  26  Ala.  133.  ^  Hopper  v.  Kalkman,  17    Cal. 

3  Lawrence,  34  Ala.  446.  517. 


APPENDIX 


APPENDIX-STATUTES. 


The  following  are  some  of  the  leading  statutory  provi- 
sions on  the  subject  of  New  Trials  in  the  different  States. 
For  the  most  part,  they  do  not  supersede  or  conflict  with, 
but  merely  explain  or  affirm,  the  common-law  rules  laid 
down  in  the  foregoing  chapters.  The  statutes  relating  to 
Error,  Appeal,  &c.,  are  too  numerous  and  various  to  admit 
of  citation. 

In  Massachusetts,  the  courts  shall  not  charge  juries  with 
respect  to  matters  of  fact,  but  may  state  the  testimony  and 
the  law.  The  courts  may  report  a  case  for  determination 
by  the  Supreme  Court.  Decisions  upon  pleas  in  abatement, 
or  on  motions  to  dismiss  for  defect  of  form  in  process,  shall 
be  final.     Exceptions  are  minutely  provided  for.^ 

In  case  of  trial  by  the  court  without  a  jury,  exceptions 
may  be  taken,  or  a  new  trial  had,  for  mistake  of  law  or 
newly-discovered  evidence.^ 

In  criminal  cases,  a  new  trial  may  be  granted  within  a 
year,  for  legal  cause,  or  where  justice  has  not  been  doue.^ 


In  ISTew  Hampshire,  new  trials  appear  to  be  granted 

le  process  of  review.^ 

In  Connecticut,  new  trials  are  authorized  "  for  misplead- 
ing, or  discovery  of  new  evidence,  or  for  other  reasonable 
cause,  according   to  the   common   and   usual   rules   and 

'  Mass.  Gen.  Sts.  566.  '  H'id.  843. 

2  Ibid.  G61.  ^  N.  II.  Comp.  Sts.  493. 


790  THE    LAW   OF   NEA7    TRIALS. 

methods  in  such  cases."  So,  upon  report  of  the  evidence 
to  the  Supreme  Court  of  Errors,  where  the  Superior  Court 
is  of  opinion  that  the  verdict  is  against  evidence.^ 

Provision  is  also  made  in  cases  before  justices  of  the 
peace.^ 

The  English  practice  of  notice  to  show  cause  is  also  recog- 
nized, where  motion  is  made  for  a  new  trial  upon  the 
ground  of  erroneous  decisions  on  matters  of  law.^ 

Kew  trials  are  provided  in  criminal  cases."* 

In  Rhode  Island,  the  court  shall  give  instructions  to  the 
jury,  and,  when  thought  advisable,  sum  up  the  evidence.^ 

A  new  trial  may  be  had  in  any  suit  commenced  in  the 
Supreme  Court.*' 

The  court  may  grant  a  new  trial  in  any  case  for  sufficient 
cause;  as  also  upon  the  grounds  allowed  by  the  common 
law.^ 

Xew  trials  are  provided  for  in  criminal  cases.^ 

In  Vermont,  if  a  party,  during  the  term  at  which  a 
verdict  is  given  in  his  favor,  give  to  a  juror  in  the  cause, 
knowing  him  to  be  such,  victuals  or  drink,  or  procure  the 
same  to  be  done,  by  way  of  treat,  either  before  or  after 
the  verdict ;  there  shall  be  a  new  trial.^ 

The  supreme  and  county  courts  may  grant  a  new  trial 
at  the  same  term  in  which  the  verdict  or  judgment  is  ren- 
dered. And  the  Supreme  Court  may  do  it  on  petition 
after  such  term,  within  the  periods  expressly  limited.^'' 

The  county  court  may  grant  a  new  trial  in  case  of  the 
default  of  a  party  or  trustee  before  a  justice  of  the  peace 
by  fraud,  accident,  or  mistake;  or  where  he  is  unjustly 
deprived  of  a  hearing  in  the  assessment  of  damages,  or  by 
fraud,  &c.,  prevented  from  entering  an  appeal." 

'  Conn.  Comp.  Sts.  (1854)  101.  ^  ibid.  467. 

2  Ibid.  103.  6  ii,id.  4G8. 

3  Ibid.  103.  9  Verm.  Gen.  Sts.  332. 
^  Ibid.  353.  >o  Ibid.  333. 

5  K.  I.  Kev.  Sts.  390.  "  Ibid.  334. 

6  Ibid.  407. 


STATUTORY    PROVISIONS.  791 

In  Maine,  it  is  ground  of  new  trial,  if  cither  party  dur- 
ing the  term  give  to  any  of  the  jurors  who  try  the  cause 
anything  by  way  of  treat  or  gratuity,  or  purposely  intro- 
duce among  the  papers  delivered  to  the  jury  any  papers 
connected  with  the  case,  but  not  offered  in  evidence.^ 

E'ew  trials  may  be  granted  in  divorce  cases,  where  the 
parties  have  not  cohabited  since  the  trial,  nor  either  of 
them  remarried,^     . 

In  ¥ew  York,  new  trials  are  granted  in  ejectment,  sub- 
stantially as  in  Illinois.^ 

I^Iinute  provisions  are  made  as  to  the  form  in  which 
application  shall  be  made  for  a  new  trial,  in  reference  to 
the  statement  of  evidence,  a  bill  of  exceptions,  and  other 
points ;  specially  mentioning  "  exceptions,  insujOScient  evi- 
dence, or  excessive  damages."* 

A  new  trial  ordered  by  the  Supreme  Court  in  a  criminal 
case  shall  be  had  in  the  court  where  the  indictment  was 
first  tried,' 

In  'Be^Y  Jersey,  after  denial  of  the  motion  for  a  new 
trial,  there  may  be  a  motion  in  arrest  of  judgment;  but 
not  the  reverse.^ 

After  the  trial  of  an  appeal  from  a  justice  in  the  Court 
of  Common  Pleas,  no  new  trial  shall  be  granted.^ 

Specified  rules  of  court  are  provided  as  to  new  trials.* 

In  Illinois,  a  new  trial  shall  be  granted  in  ejectment 
within  one  year  from  judgment,  upon  payment  of  costs 
and  damages.  Also  a  second  new  trial  may  be  granted 
within  one  year  from  the  first,  if  justice  will  thereby  be 
promoted  and  the  rights  of  the  parties  more  satisfactorily 
ascertained  and  established.  Similar  provision  is  made  in 
case  of  default.^ 

1  Maine  Rev.  Sts.  (1857)  524.  ^  ihid.  1035. 

2  Ibid.  395.  "^  Nix.  Dig.  660. 

3  3  K  Y.  Rev.  Sts.  596.     (Infra,  '  Ibid.  430. 
Illinois.)  ^  Ibid.  962. 

*  Ibid.  541.  9  1  111.  Sts.  218. 


702  THE    LAW    OF   NEW    TRIALS. 

The  overruling  of  motions  for  a  new  trial  in  criminal 
cases  may  be  assigned  as  ground  of  error.^ 

In  Ohio,  an  exception  is  defined  as  an  objection  taken 
to  a  decision  of  the  court  upon  a  matter  of  law.  The 
exception  must  be  stated  with  so  much  of  the  evidence 
as  is  necessary  to  explain  it,  and  no  more,  and  the  whole 
as  briefly  as  possible.  An  exception  m«st  be  material  and 
prejudicial  to  the  substantial  rights  of  the  party .^ 

A  new  trial  is  formally  defined,^ 

The  grounds  of  new  trial  are  irregularity  in  the  pro- 
ceedings of  the  court  or  referee,  or  abuse  of  discretion; 
misconduct  of  the  ^ury  or  party;  accident  or  surprise 
which  ordinary  prudence  could  not  have  guarded  against ; 
excessive  damages,  caused  by  passion  or  prejudice,  error 
in  amount,  whether  too  large  or  too  small,  where  the 
action  is  upon  a  contract,  or  for  the-  injury  or  detention 
of  property ;  insufficient  evidence,  or  that  the  decision  is 
contrary  to  law;  newly-discovered  evidence,  if  due  dili- 
gence were  used ;  error  of  law,  excepted  to."* 

A  new  trial  shall  not  be  granted  for  the  smallness  of 
damages  in  an  action  for  injury  to  person  or  reputation, 
nor  where  the  damages  equal  the  actual  pecuniary  injury.'^ 

Provision  is  also  made  for  new  hearings  in  many  speci- 
fied cases  of  error  and  injustice.^ 

A  justice  of  the  peace  may  set  aside  a  verdict  obtained 
before  him  by  fraud,  partiality,  or  undue  means,' 

A  new  trial  may  be  had  as  of  course  in  actions  I)rought 
before  the  Court  of  Common  Pleas;  and  a  second  new  trial 
for  any  cause  above  stated.^ 

Provision  is  made  for  revision  of  the  court's  decision 
upon  the  application  for  a  new  trial. ^ 


'  2  111.  Sts.  1216.  c  ii^id.  1251. 

2  Curw.  Laws  of  Ohio,  1209.  '  Ibid.  1293. 

s  Ibid.  8  2  Ohio  Rev.  Sts.  1155. 

*  Ibid.  1210.  3  Ibid.  1159. 

6  Ibid.  1210. 


STATUTORY    PROVISIONS.  793 

A  new  trial  may  be  had  as  of  course  iu  actions  for  re- 
covery of  real  property.^ 

Til  Indiana,  the  grounds  of  a  new  trial  are  substantially, 
if  not  precisely,  the  same  as  in  Ohio.^ 

A  new  trial  in  criminal  cases  is  defined  as  a  re-examina- 
tion of  the  issue  in  the  same  court.  The  granting  of  a 
new  trial  places  the  parties  in  the  same  position  as  if  none 
had  been  had ;  the  former  verdict  cannot  be  used  or  re- 
ferred to,  either  in  the  evidence  or  argument.  The  grounds 
are,  when  the  jury  has  received  any  evidence,  paper,  or 
document  not  authorized  by  the  court;  or  the  court  has 
admitted  illegal  testimony ;  or  newly-discovered  evidence. 
Separation  or  misconduct  of  the  jury.  Deciding  the  verdict 
by  means  other  than  a  fair  expression  of  opinion  on  the  part 
of  all  the  jurors.  Misdirection.  When  the  verdict  is  con- 
trary to  law  or  evidence ;  but  not  more  than  two  new  trials 
shall  be  granted  for  this  cause  alone.^ 

In  Missouri,  specific  regulations  are  made  with  reference 
to  general  and  special  verdicts.  There  shall  be  only  one 
new  trial  granted  to  the  same  party  of  the  same  issue.'* 

The  grounds  of  new  trial  are  mistake  or  surprise,  mis- 
direction, mistake  of  the  jury,  a  verdict  contrary  to  the 
instructions  of  the  court ;  fraud  by  one  party  upon  the 
other;  perjury  or  mistake  of  witnesses,  resulting  in  an 
improper  verdict,  which  defeats  a  just  action  or  defence. 
The  pleadings  may  be  amended.' 

There  shall  be  only  one  new  trial,  unless  the  triers  of  fact 
err  in  the  matters  of  law;  or  the  jury  are  guilty  of  mis- 
behavior.^ 

In  Arkansas,  a  new  trial  shall  not  be  granted  after 
motion  in  arrest  of  judgment,     l^ot  more  than  two  new 

'  1  Ohio  Pwev.  Sts.  397.  «  2  Mis.  Rev.  Sts.  1263. 

2  2  ^>ts.  of  lud.  211-6.      ■  5  ibia.  12S5. 

»  Ibid.  423.  6  Ibid.  1286. 


794  THE   LAW    OP   NEW   TRIALS. 

trials  shall  be  granted,  unless  the  jury  err  in  matter  of  law 
or  arQ  guilty  of  misconduct.^ 

In  Iowa,  a  new  trial  may  be  granted  in  an  action  for  the 
recovery  of  land,  at  the  discretion  of  the  court.- 

Also,  in  actions  before  justices  of  the  peace.^ 

The  same  code,  in  reference  to  criminal  prosecutions, 
defines  a  new  trial.  The  proceedings  upon  a  second  trial 
must  be  entirely  de  novo,  without  reference  to  the  former 
one.  The  causes  enumerated  are  absence  of  the  defendant 
in  case  of  felony ;  the  offering  in  evidence  of  any  paper  or 
document  to  the  jury,  out  of  court,  and  without  authority ; 
separation  or  misconduct  of  the  jury ;  their  deciding  upon 
the  verdict  by  lot,  or  in  some  other  illegal  mode;  misdi- 
rection of  the  judge;  a  verdict  against  law  or  evidence. 
But  for  the  cause  last  named  only  two  new  trials  are 
allowed.^ 

In  the  same  code  very  specific  rules  are  laid  down  in 
reference  to  the  jury,  the  form  of  the  verdict,  and  other 
points  connected  with  a  trial. 

In  Tennessee,  not  more  than  two  new  trials  shall  be 
granted  to  the  same  party  in  an  action  at  law,  or  upon  the 
trial  by  a  jury  of  an  issue  of  fact  in  equity.^ 

A  new  trial  shall  not  be  allowed  in  criminal  cases  for 
certain  formal  errors.^ 

In  Michigan,  new  trials  are  granted  in  ejectment,  as  in 
New  York.^ 

So  where  justice  is  not  done  in  a  criminal  case.^ 

In  Minnesota,  the  definition  of  and  grounds  for  new 
trial  are  substantially  as  in  California.^    See  p.  795. 

1  Ark.  Dig.  8G5.  «  Ibid.  937. 

2  Iowa  Code,  284.  ^  2  Mich.  Comp.  L.  123G. 

3  Ibid.  313.  8  ibia.  1594. 

4  Ibid.  421.  s  sts.  of  Miu.  504. 

5  Code  of  Tennessee,  590 


STATUTORY   TROVISIONS.  795 

In  actions  for  recovery  of  real  property,  a  new  trial  may 
be  granted  within  six  months.  Generally,  a  third  trial 
shall  not  be  granted.^ 

New  trials  arc  provided  in  criminal  cases.^ 

In  Wisconsin,  in  an  action  for  the  recovery  of  specific 
real  property  or  the  possession  thereof,  a  new  trial  shall 
be  rendered  on  application  and  payment  of  costs  within  one 
year.     (Other  provisions,  as  in  Kew  York  and  Illinois.^) 

New  trials  are  provided  in  criminal  cases.'* 

In  California,  a  new  trial  is  defined  as  a  re-examination 
of  an  issue  of  fact  in  the  same  court,  after  a  trial  and 
decision  by  a  jury,  court,  or  referees. 

The  grounds  of  new  trial  are  irregularity  in  the  pro- 
ceedings of  the  court,  jury,  or  adverse  party,  or  order  of 
court ;  or  any  abuse  of  discretion ;  misconduct  of  the  jury ; 
accident  or  surprise ;  newly-discovered  evidence ;  provided, 
in  the  two  last  cases,  the  party  has  not  been  guilty  of 
negligence ;  excessive  damages,  caused  by  passion  or  prej  u- 
dice;  insufficient  evidence;  a  verdict  against  law;  error 
in  law.^ 

In  South  Carolina,  new  trials  are  granted  under  such 
restrictions  and  in  such  manner  as  the  judges  may  establish 
by  the  rules  and  orders  of  court.*^ 

In  North  Carolina,  new  trials  are  provided  in  criminal, 
as  in  civil  cases.'' 

Also  by  justices  of  the  peace,  after  judgment  or  execu- 
tion against  an  absent  party.^ 

In  Georgia,  new  trials  are  granted  according  to  the 
usages   and   customs  of  courts.     A   new   trial   may   be 

'  Sts.  of  Min.  595.  »  Wood's  Cal.  Dig.  192. 

«  Il)icl.  777.  6  7  S.  C.  Sts.  256. 

3  Wis.  Rev.  Sts.  841.  '  N.  C.  Rev.  C.  234. 

»  Ibid.  995.  «  Ibid.  364. 


796  THE   LAAV    OF   NEW    TRIALS. 

granted  upon  the  verdict  of  a  special  jury  contrary  to 
evidence  and  the  principles  of  justice  and  equity.^ 

The  jury  are  made  judges  of  the  law.     Ko  new  trial 
shall  1)6  granted  after  acquittal. 


2 


In  Florida,  new  trials  shall  not  be  granted  for  certain 
enumerated  formal  defects.^ 

In  Alabama,  a  new  trial  may  be  granted  in  case  of  a 
lost  or  mislaid  receipt,  which  could  not  be  proved  by 
secondary  evidence,  but  is  since  found,  within  two  years 
from  the  judgment.* 

So  also  for  want  of  defence  by  surprise,  accident,  mis- 
take, or  fraud,  without  fault  of  the  party ;  within  four 
months.^ 

Only  two  new  trials  shall  be  granted  the  same  party.'' 

In  Louisiana,  in  all  cases  appealable  to  the  Supreme 
Court,  it  shall  be  the  duty  of  the  judge  to  charge  the  jury 
in  writing,  if  counsel  require  it.^ 

In  Mississippi,  new  trials  shall  be  granted  on  terms  di- 
rected by  the  court  But  there  shall  be  only  two  new 
trials.^ 

The  granting  or  refusal  of  a  new  trial  is  ground  of 
error,^ 

The  judge  shall  not  sum  up  or  comment  on  the  evidence, 
nor  charge  on  the  law,  unless  the  parties  difl'cr,  or  unless 
one  party  asks  for  specific  instructions.'" 

In  Texas,  any  justice  of  the  peace  may  order  a  new 
trial,  whenever  he  shall  consider  that  justice  has  not  been 
done.     But  only  one  new  trial  shall  be  granted." 

'  Cobb's  Laws  of  Georgia,  503.  '  La.  Rev.  Sts.  98. 

2  Ibid.  805.  ^  Hutch.  Code,  87G. 

3  Thomp.  Dig.  Sol.  s  Il)id.  885. 
*  Code  of  Ala.  443.  '°  Ibid.  88G. 

'  Il)id.  "  Oldli.  &  White's  Dig.  2G3. 

5  Ibid.  423. 


INDEX. 


ABSENCE, 

•whether  a  surprise,  528,  544. 
of  witness — surprise,  536. 

certiorari  for,  698. 
of  counsel — surprise,  549. 
and  default,  aucl.  que.  in  case  of,  768. 
ABSTRACT, 

instruction  to  jury,  260,  293,  305,  380,  385. 
ACC1D*ENT, 

injunction  for,  598. 
ACQUITTAL, 

error  in  case  of,  681. 
AD  qUESTIONEM  LEGIS  JUDICES,  S^-c,  448. 
ADVERSE  POSSESSION, 

law  and  fact,  340. 
ADVISING  OF  NEW  TRIAL,  17. 
AFFIDAVIT, 

of  juror  as  to  agreement,  158,  160,  162. 

■whether  admissible,  239. 
as  to  competency  of  juror,  162. 
conversation,  211. 
misconduct  of  jury,  250. 
in  case  of  new  evidence,  514. 

surprise,  559. 
upon  certiorari,  692. 
aucl.  que.,  771. 
AFFIRMANCE, 

on  -writ  of  error,  677. 
on  appeal,  738,  743. 
AGAINST  EVIDENCE, 

verdict,  444.     (See  Verdict.) 
AGE  OF  JUROR, 

objection  to,  155,  167. 


798  INDEX. 

AGENCY, 

•writ  of  error  in  case  of,  6G7. 

appeal,  750. 
AGREEMENT, 

necessary  to  verdict,  157. 
ALIENAGE  OF  JUROR,  154,  167. 
ALTERATION  OF  INSTRUMENT, 

a  question  for  the  jury,  325. 
AMBIGUOUS  INSTRUCTION  TO  JURY,  263,  270. 
AMENDMENT, 

of  exceptions,  35. 

of  verdict,  148,  151,  152,  153. 

discretionary,  390,  404. 

of  record — error,  640  n. 

of  writ  of  error,  658. 

in  case  of  writ  of  error,  671. 
appeal,  739. 
AMOUNT, 

statement  of,  in  verdict,  138. 

as  affecting  verdict  against  evidence,  482. 

in  case  of  injunction,  592. 

writ  of  error,  relating  to,  629, 

in  case  of  appeal,  751. 

of  damages,  measure  of,  568. 
APPEAL, 

definition,  700. 

in  the  United  States ;  statutory  law,  701. 

a  statutory  remedy ;  the  statutes  must  be  strictly  complied  with 
time,  &c.,  702. 

a  continuation  of  the  original  suit ;  notice,  &c.,  703. 

question  as  to  right  of  appeal ;  process  in  connection  therewith  ; 
constitutional  right,  704. 

issue,  default,  &c.,  705. 

restricted  right  of  appeal ;    title  to  land,  &c. ;   construction   of 
statutes,  706. 

from  a  favorable  judgment,  &c.,  707. 

as  connected  with  other  forms  of  rehearing ;   error,  injunction, 
review,  audita  querela,  &c.,  707. 

proceedings  must  be  judicial,  709. 

in  case  of  habeas  corpus,  710. 
mandamus,  711. 
contempt,  711. 

there  must  be  a  judgmerit,  712. 


INDEX.  799 

APPEAL,  continued. 

the  jiulgmcnt  must  he  final,  not  interlocutory;  qualifications  and 

exceptions  ;  what  is  a  final  judgment,  712. 
discretionary  judgments,  718. 

neglect  and  waiver;  objections  not  raised  in  the  court  below,  721. 
questions  o{  jurisdic(io7i,  731. 
ej^cct  of  an  apjical ;  suspends  or  vacates  the  judgment;  irregular 

or  void  appeal ;  neglect  to  enter  or  prosecute,  733. 
course  of  proceeding  iu  the  appellate  court ;  whole  case  re-opened ; 

limitations  of  this  rule ;  pleadings,  evidence,  &;c.,  737. 
dismissal  cf,  742. 
remanding  of  the  case,  745. 
parties;  persons  interested;  joint  parties;  executors,  assignees, 

&c.,  747. 
amount  of  judgment ;  jurisdiction,  <S:c.,  751. 
return  of  papers  by  the  court  below ;  copies,  originals,  papers 

filed,  &c.,  754. 
bond  and  recognizance,  758. 
payment  of  fees,  761. 
successive  appeals,  761. 
from  the  granting,  &c.,  of  new  trial,  7. 
and  writ  of  error,  678. 
certiorari,  695. 
mandamus,  758  n.,  777. 
aud.  que.,  759,  767. 
ARBITEATION, 

error  in  case  of,  654. 
ARGUMENT  OF  COUNSEL,  224. 

as  connected  with  instructions,  309. 
ARREST  OF  JUDGMENT, 
and  new  trial,  17,  37. 
writ  of  error,  620. 
ASSAULT, 

damages  for,  578. 
ASSIGNEE  OF  BANKRUPT, 
writ  of  error  in  case  of,  664. 
appeal  in  case  of,  750. 
ASSIGNMENT  OF  ERRORS,  657. 

in  case  of  certiorari,  699. 
ASSOCIATION, 

membership  of  juror  in,  192. 
ASSUMING  OF  FACT, 

in  instructions  of  judge,  301. 


800  INDEX. 

ATTORNEY, 

payment  of  costs  by,  G8. 

sui'i^rise,  in  connection  with,  549. 

appeal  by.     (See  Appeal.) 
AUDITA  QUERELA,  1U. 

definition  ;  for  the  most  part  obsolete,  7G4. 

as  connected  with  other  modes  of  revision,  765. 

general  nature  and  objects  of,  767. 

lost  by  neglect,  767. 

absent  defendant ;  default,  768. 

imprisonment,  769. 

payment  of  judgment,  770. 

parties,  770. 

practice,  773. 

and  appeal,  709,  759. 
AYERAGE  YERDICT,  160. 

aflulavit  of,  245. 
AWARD, 

against  evidence,  486. 

injunction  in  case  of,  604. 

error  in  case  of,  643. 

B. 

BANKRUPTCY, 

■writ  of  error  in  case  of,  663. 

appeal  in  case  of,  750. 
BILL  OF  EXCEPTIONS,  76  n.     (See  Exceptions.) 

in  criminal  cases,  114. 
BOND, 

upon  writ  of  error,  655. 

in  case  of  appeal,  758. 

new,  in  case  of  appeal,  742. 
BOOK, 

use  of,  by  jury,  221. 

reading  of,  to  jury,  228. 
BOUNDARY, 

questions  of  law  and  fact,  340. 
BREACH  OP  PROMISE, 

damages  for,  585. 
BRIBERY  OF  WITNESS, 

surprise  by,  544. 
BURDEN  OF  PROOF, 

on  appeal,  702,  705. 


INDEX.  801 


C. 


CALCULATION  OP  DAMAGP:S, 

means  of,  568,  575. 
CAPITAL  PUNISIIMFA'T, 

conscientious  scruples  as  to,  193. 
CARRIER, 

mixed  question  of  law  and  fact  as  to,  348. 
CASE  STATED, 

appeal  on,  706. 
CAUSE  OF  ACTION, 

on  appeal,  740. 
CERTIFICATE  OF  JUDGE, 

as  to  verdict  against  evidence,  488. 
CERTIORARI,  680. 

definition,  nature,  and  purpose,  686. 

what  is  to  be  reviewed,  688. 

distinction  between  error  and  certiorari,  688. 

lies  only  upon  pending  proceedings,  688. 

not  a  writ  of  right — discretionary,  689. 

the  proceeding  must  be  a,  judicial  one,  689. 

relates  to  the  legality  and  regularity  of  the  proceedings  reviewed. 
690. 

supersedeas,  690. 

jurisdiction  of  the  court  below,  690. 

questions  of  law  and  of  fact,  691. 

return  to  the  writ,  692. 

does  not  lie  where  there  are  other  remedies ;  appeal,  695. 

in  criminal  cases,  695. 

parties,  696. 

to  justices  of  the  peace,  696. 

form  of  petition  and  affidavit,  697. 

in  case  of  new  trial,  7. 

and  writ  of  error,  623. 
appeal,  704,  708  n. 
mandamus,  778. 
CHALLENGE  OF  JUROR,  155,  156  n. 

and  new  trial,  in  connection,  167  n.,  190  n. 
for  the  principal  cause,  and  to  the  favor,  181,.     • 
CHANCE, 

verdict  determined  by,  100. 
CHANGE  OF  JURORS,'l74. 
CHARGE.    (See  Rulings.) 
51 


802  INDEX. 

CHARACTER  OF  WITNESS, 

instruction  as  to,  366. 
CIRCUMSTANTIAL  EVIDENCE, 

verdict  against,  462. 
CLERK, 

mandamus  to,  774  n. 
COLOR  OF  TITLE— 
law  and  fact,  340. 
COMMENT  OF  JUDGE, 

upon  the  evidence,  285. 

refusal  of,  291. 
COMMON  LAW 

remedy,  writ  of  error  is,  620. 
proceedings,  writ  of  error  limited  to,  620. 
COMMONWEALTH, 

new  trial  in  favor  of,  and  against,  114. 
COMPETENCY 

of  witness,  time  of  objection  to,  89. 
of  juror,  162,  165. 
of  evidence,  a  question  of  law,  313. 
and  sufRciency  of  evidence — distinction,  451. 
COMPROMISE, 
verdict,  160. 

question  of — law  and  fact,  313. 
COMPUTATION, 

ground  of,  as  to  damages,  568,  575. 
COMYNS' 

definition  of  new  trial,  2. 
CONDITION 

of  new  trial,  65. 
of  verdict,  152. 
CONFESSIONS, 

instructions  as  to,  367. 
CONFESSION 

of  judgment — injunction,  603. 
error,  653. 
CONFLICT  OF  EVIDENCE, 
instructions  in  case  of,  653, 
verdict  against  evidence,  457,  461,  474. 
CONSCIENTIOUS 

scruples  of  juror,  193. 
CONSENT, 

verdict  by,  against  evidence,  486. 


INDEX.  803 

CONSTITUTION, 

whether  a  new  trial  is  prohibited  by,  118. 

as  affecting  the  powers  of  a  jury  in  criminal  cases,  315. 

question  as  to  the,  is  for  the  court,  321. 
of,  as  to  appeal,  705. 

mandamus,  783. 
CONSTRUCTION 

of  charge  to  jury,  265. 

of  writings — law  and  fact,  318,  324. 
CONTEMPT, 

certiorari  in  case  of,  699  n. 

in  reference  to  appeal,  711. 
CONTINUANCE— DISCRETIONARY,  390,  403. 
CONTINUING  TRIBUNAL, 

in  case  of  mandamus,  782. 
CONTRACT, 

question  as  to — law  and  fact,  324,  337. 
CONTRADICTION  OF  WITNESS, 

newly-discovered  evidence  for,  505. 
CONVERSATION  WITH  JURORS,  202,  206. 
CORAM  VOBIS,  &c.,  ERROR,  625. 
CORPORATION, 

whether  member  of,  can  be  a  juror,  190. 
COSTS, 

upon  new  trial,  65. 

instructions  as  to,  376. 

and  damages,  565. 

writ  of  error  as  to,  629. 

aud.  que.  as  to,  772. 
COUNTS, 

form  of  verdict  as  to,  136,  137,  143,  145. 

instructions  based  on,  308. 

writ  of  error  in  relation  to,  629. 
COUNSEL, 

surprise  in  connection  with,  550. 

waiver  by  act  or  neglect  of,  105. 

writ  of  error  by,  668. 

argument  of,  224. 

ignorance  of — new  evidence,  499. 
COUNTY, 

jury  in  case  of,  190 
COURT, 

trial  of  fact  by,  121 


804  INDEX. 

COURT,  continued. 

above,  objection  to  form  of  verdict,  1 35. 
as  to  jury,  185. 
argmnent  of  counsel,  227. 
affidavit  of  juror,  250. 
and  jury,  respective  provinces  of,  311. 
trial  by — evidence,  427. 
above,  verdict  against  evidence,  446,  453. 

in  cast}  of  newly-discovered  evidence,  512. 
opinion  of,  as  to  damages,  567. 
above,  in  case  of  excessive  damages,  568. 
injunction,  in  what,  591. 
of  record,  writ  of  error  requires,  620. 
COURT-MARTIAL— 

writ  of  error,  622. 
COURTS, 

above  and  below,  new  trial  in,  1  n.,  7,  29,  37 
respective  jurisdiction  of — mandamus,  783. 
CREDIBILITY 

of  evidence,  is  for  the  jury,  313. 
CREDIT, 

question  of — law  and  fact,  338. 
of  witness,  instruction  as  to,  362. 
CREDITOR, 

writ  of  error  by,  664. 
CRIMINAL  CASES, 

new  trial  in,  113.     (See  Neio  Trial.) 
writ  of  error  in,  681. 
law  and  fact  in,  314. 
verdict  against  evidence  in,  460. 
surprise  in,  522. 
certiorari  in,  696. 
appeal  in,  751. 
CRBI.  CON., 

damages  for,  586. 
CROSS-EXAMINATION— 

discretionary,  401. 
CUMULATIVE 

incompetent  evidence,  414. 
uewly-discovered  evidence,  499. 


INDEX.  805 

I>- 

DAMAGES, 

amount  of,  new  trial  for,  561. 

general  rule.  .")G1. 

cautiously  applied — remarks  of  judges,  5G2. 

exemplar}/  damages,  5G2. 

second  new  trial,  564. 

declaration,  565. 

law  and  fact,  565. 

joint  defendants,  566. 

fault  of  party — waiver,  566. 

slight  excess — opinion  of  judge,  &c. — dissatisfaction,  567. 

court  above,  568. 

calculation  of  amount;  basis  of  calculation,  568. 

nominal  damages,  572. 

too  small  damages,  572. 

partial  new  trial,  576. 

remittitur,  ko,.,  576. 

assault,  578. 

false  imprisonment,  579. 

negligence,  579. 

libel,  &c.,  579. 

malicious  prosecution,  583. 

trespass  qu.  clans.,  584. 

watercourse,  584. 

breach  of  promise,  585, 

seduction,  <fec.,  585. 

excessive,  but  substantial  justice,  63. 

waiver  in  case  of,  102. 

new  evidence  as  to,  511. 

writ  of  error  in  relation  to,  629. 

in  case  of  error,  674. 
instructions  as  to,  376. 
DANGER 

in  granting  new  trial,  6. 
DEATH, 

writ  of  error  in  case  of,  666. 
appeal  in  case  of,  750 
and.  que.  in  case  of,  771. 
DECLARATION, 

writ  of  error  in  reference  to,  630,  638. 
in  connection  with  damages,  565. 
DECREE, 

injunction  of,  592. 


806  INDEX. 

DEED, 

construction  of — law  iuul  fact,  321. 
DEFAULT, 

waiver  of  objection  to,  98. 
surprise  in,  555. 

writ  of  error  in  case  of,  630,  638,  651. 
appeal  in  case  of,  705  n. 
and.  que.  in  case  of,  168. 
DEFINITION  OF  NEW  TRIAL,  1. 
DELAY, 

in  case  of  injunction,  595. 
appeal,  743. 
DELIVERY— 

law  and  fact,  34-1. 
DEPOSITION, 

waiver  in  case  of,  92,  93. 
ruling  as  to — distinction,  400. 
admission  or  rejection  of,  441. 
surprise  as  to,  558. 
DEPOSITIONS, 

whether  delivered  to  jury,  218. 
DESCRIPTION  OF  LAND— 

law  and  fact,  340. 
DISCHARGE  OF  JURY, 

eifect  on  the  action,  237. 
order  as  to,  238. 
DISCOVERY 

of  new  evidence.     (See  Neivly,  &c.) 
and  recollection — distinction,  498. 
DISCRETION, 

as  to  new  trial,  6,  37,  121.     (Sec  Rulings.) 
competency  of  juror,  185. 
new  evidence,  513. 
surprise,  523. 
writ  of  error  in  case  of,  628. 
in  reference  to  certiorari,  689. 
appeal,  718. 
DISEASE  OF  JUROR,  166. 
DISMISSAL 

in  case  of  error,  535,  669. 

appeal,  736,  742,  759. 
DISSATISFACTION 

of  judge  with  the  verdict,  487,  567. 


INDEX.  807 


DOCUMENTARY  EVIDENCE, 

discovery  of,  499. 
DOUBTFUL  INSTRUCTIONS,  309,  314. 
DRAWING  OF  JURY,  165  n.,  167,  170. 
DRINKING  BY  JURORS,  199. 
DRUNKENNESS 

of  juror,  167  n. 

law  and  fact  as  to,  344. 

E. 

EATING,  &c. 

by  jury,  198,  208  n. 

by  juror,  211. 
EFFECT 

of  new  trial  and  motion  for,  74. 

of  evidence,  instruction  as  to,  285. 

of  writ  of  error,  655. 

of  appeal,  733. 
EJECTMENT, 

writ  of  error  in,  664. 
ELECTION, 

between  exceptions  and  new  trial,  73. 
ENTICING  A  WIFE, 

damages  for,  586. 
EQUITY,  NEW  TRIAL  IN,  587. 

for  surprise,  524. 

general  remarks,  587. 

mode  of  proceeding — injunction,  588. 

special  grounds  must  be  shown,  589. 

amount  of  judgment,  593. 

form  of  decree,  593. 

judgment  in  another  State,  593. 

terms,  594. 

successive  injunctions,  595. 

time,  595. 

laches — neglect,  delay,  &c.,  595. 

pleadings,  598. 

exceptions  to  the  strict  rule,  598. 

accident,  mistake,  &c.,  599. 

fraud,  599. 

formal  errors,  601. 

default,  602. 

confession,  603. 
compromise,  604. 


808  INDEX. 

EQUITY,  NEW  TRIAL  IN,  continued. 
award,  G04. 
new  evidence,  604. 
in  part,  (505. 
payment,  606. 
set-ofF,  607. 
estoppel,  607. 
pleadings,  609. 
parties,  610. 
title  to  lands,  612. 
surety,  612. 
trusts,  613. 

in  case  of  execution,  614. 
and  writ  of  error,  620  n. 
ERROR.     (See  Writ  of  Error.) 

whether  granting,  &c.,  of  new  trial  may  be,  7,  16  n.,  37. 

and  new  trial,  17,  37. 

whether  a  ground  of  injunction,  591,  601. 

and  certiorari,  686  and  n,,  688. 
appeal,  701,  708,  712  u. 
aud.  qiie.,  767. 
mandamus,  777. 
ESCROW— 

law  and  fact  as  to,  326. 
EVIDENCE.     (See  Verdict  against,  &c.,  Newly-discovered,  Sec.) 

admission  or  rejection  of,  new  trial  for,  407. 

general  rule,  407. 

effect  of  an  instruction  to  disregard  incompetent  evidence,  &c., 
409. 

irrelevant  or  immaterial  evidence,  410. 

cumulative  evidence,  414. 

conflicting  evidence,  417. 

infamy  of  witness,  417. 

incompetent  question,  417. 

secondary  evidence,  417. 

admission  as  affecting  the  course  of  trial,  417. 

purpose  of  offering  the  evidence,  as  affecting  its  competency,  419. 

miscellaneous,  422. 

writings,  hearsay,  secondary  evidence,  423. 

evidence  connected  with  other  evidence,  424,  429. 

reasons  for  rejecting  evidence,  426. 

trial  bi/  the  court,  or  upon  lorit  of  inquiry,  427. 

new  trial  in  connection  with,  429. 

interlocutory  proceedings,  429. 

evidence  as  connected  with  the  pleadings,  429. 


INDEX. 

EVIDENCE,  contmncd. 

whether  evidence  must  be  confined  to  fads,  432. 

may  come  from  either  party,  433. 

must  be  regularly  offered,  433. 

must  be  objected  to;  form  of  objection,  433. 

questions  of  time,  436. 

depositions,  441. 

set-off,  441. 

practice  in  New  York,  442. 

waiver,  4r)7. 

error  in  relation  to,  must  be  proved,  27. 

new  trial  in  relation  to,  requires  injury,  44,  53. 

where  substantial  justice  is  done,  60. 

verdict  against — substantial  justice,  Gl. 

waiver  of  objection  to,  88,  o.iG. 

nonsuit  for  want  of,  270. 

weight  and  tendency  of — distinction,  284. 

instructions  based  upon,  295,  382,  385. 
relating  to,  3151. 

competency  and  sufficiency  of — distinction,  451. 

report  of,  in  case  of  verdict  against  evidence,  454. 

certiorari  in  reference  to,  698. 
EX  DEBITO  JUSTITI^— 

writ  of  error  is,  620. 
EXAMINATION 

of  witnesses — discretion,  412. 
EXCEPTIONS,  16,  32. 

appeal,  and  error,  634. 

amendment  of,  35. 

and  new  trial,  election  between,  73. 

practice  as  to,  76  n. 

and  motion  for  new  trial,  76  u. 

in  criminal  cases,  114. 

and  error,  480. 
EXCESSIVE  DAMAGES.     (See  Damages.) 

substantial  justice,  63. 

waiver  in  case  of,  102. 
EXCITEMENT, 

whether  disqualification  of  juror,  186. 
EXCULPATION 

of  juror,  affidavit  for,  247,  248. 
EXECUTION 

of  contract— law  and  fact,  324,  329. 

injunction  of,  614. 


809 


810  INDEX. 

EXECUTION,  continued. 

error  as  to,  623. 

after  writ  of  error,  G56. 

in  case  of  appeal,  589. 
EXECUTORS, 

writ  of  error  in  case  of,  GGG. 

aud.  que.  in  case  of,  771. 
EXEMPTION 

and  qualification  of  juror — distinction,  164. 
EXEMPLARY  DAMAGES,  562.     (See  Damages. 
EXPERTS, 

instructions  as  to,  369. 
EX  POST  FACTO— 

writ  of  error,  628. 

F. 

FACT, 

only  questions  of,  are  for  jury,  312. 

error  of,  626. 

questions  of,  upon  certiorari,  691. 
FACTS, 

statement  of,  in  charge,  286. 

opinion  of  judge  as  to,  385. 
FALSE 

imprisonment,  damages  for,  579. 

return,  injunction  for,  601. 
FEES, 

payment  of,  on  appeal,  761. 
FEIGNED  ISSUE,  617. 
FINAL  JUDGMENT— 

writ  of  error,  634. 

appeal,  708,  712. 
FORM 

of  action,  new  trial  in  connection  with,  70. 

of  verdict.     (See  Verdict.) 

of  oath  of  jury,  165. 

of  instructions,  380,  384. 

newly-discovered  evidence  as  to,  512. 

errors  of — injunction,  601. 

writ  of  error,  638. 
appeal,  740. 
FO  UNDA  TION, 

error  of,  624. 


INDEX. 

FRAUD, 

questions  of — law  and  fact,  349. 
injunction  for,  599. 
FREEMASON, 

juror  in  case  of,  192. 

G. 

GARNISHEE, 

appeal  in  case  of,  751. 
GENERAL 

objection  to  evidence,  423. 

and  special  verdicts,  126,  127. 
GOVERNMENT, 

new  trial  in  favor  of,  114.     (See  Commomoealth,  State.) 
GROUNDS 

of  new  trial,  1,  20,  121. 

of  verdict,  inquiry  of  court  as  to,  250. 

H. 

HABEAS  CORPUS 

and  new  trial,  19. 

error,  620  n.,  621  n.,  623. 
appeal.  704.  710. 
HARMLESS  ERROR, 

whether  ground  of  new  trial,  40. 
HEARSAY, 

as  to  verdict,  250. 

instructions  as  to,  366. 

evidence,  newly-discovered,  520. 
HEIRS, 

error  in  case  of,  666. 
HISTORY  OF  NEW  TRIAL.  2. 
HUSBAND  AND  AVIFE, 

error  in  case  of,  662. 


IDENTITY— 

law  and  fact,  344. 
IGNORANCE 

of  jury,  166. 

whether  a  ground  df  surprise,  521 
ILLNESS. 

whether  a  surprise,  528. 


811 


812  INDEX. 

ILLUSTRATION 

by  jiulj^^c  to  the  jury,  288. 
IMPEACHMENT 

oF  witness,  instruction  as  to,  365. 

new  evidence  for,  .505,  509. 
in  case  of  newly-discovered  evidence,  519. 
in  reference  to  surprise,  5415,  549. 
IMPORTANCE 

of  new  trial,  4. 
IMPRISONMENT— 

and.  que.,  769. 
INCOMPETENCY  OF  JUROR,  162,  105. 

waiver  in  case  of,  82. 

affidavit  of,  248. 
INCOMPETENT  EVIDENCE, 

instruction  to  disregard,  409. 
INCONSISTENT 

verdict,  147. 

instructions,  265. 
INDEFINITE 

measure  of  damages,  570. 
INDICTMENT, 

writ  of  error  in  case  of,  681.     (See  Government,  State. 
INFANCY, 

error  in  case  of,  673. 

and.  que.,  771. 
INFERENCE, 

instruction  as  to,  284. 

in  instructions,  303. 

questious  of,  324. 
INFLUENCE  UPON  JUROR,  202. 
INJUNCTION, 

and  new  trial,  588.     (See  Equity.) 
appeal,  709. 
mandamus.  779. 
aud.  que.,  767. 
INJURY, 

new  trial  requires,  40,  98. 

whether  writ  of  error  requires,  637,  639. 
appeal,  707, 
INJUSTICE, 

general  ground  of  new  trial,  121. 
IN  NULLO  EST  ERRATUM,  6'40  h.,  C70. 


INDEX.  813 

INQUIRY, 

writ  of — evidence,  429. 
INSANITY— 

aud.  que.,  771. 
INSPECTION, 

verdict  founded  on,  476. 
INSTRUCTION.     (See  Rulings.) 

error  of,  must  clearly  appear,  21. 

not  injurious,  whether  ground  of  new  trial,  42,  56. 

error  of,  in  case  of  substantial  justice,  57. 

waiver  of  objection  to,  88,  96. 

supplementary,  to  jury,  222. 

as  to  agreement,  238. 
fraud,  350. 

to  disregard  incompetent  evidence,  409. 

whether  a  surprise,  554. 

juror's  affidavit  as  to,  248. 
INTENTION— 

law  and  fact,  344. 

evidence  of,  432. 
INTEREST 

of  witness — for  the  court,  313. 

of  juror,  186,  190. 
INTERLOCUTORY 

proceedings — evidence,  419. 

judgment — appeal,  712. 
INTOXICATING 

liquor  used  by  jurors,  199. 
IRRELEVANT 

instruction,  260. 

evidence,  410,  424,  429. 
ISSUE, 

form  of  verdict  in  reference  to.  134,  142,  145. 

verdict  against  evidence  in  connection  with,  446. 

in  reference  to  appeal,  705. 

J. 

JEOPARDY, 

meaning  of,  in  the  constitution,  as  to  new  trial,  118. 
JOINDER 

of  errors  of  law  and  fact,  62  7. 
error  as  to,  630,  638. 
in  writ  of  error,  659. 
in  appeal,  748. 


814  INDEX. 

JOINT 

parties,  form  of  verdict  in  case  of,  139,  145,  151,  152, 

testimony  of,  new  trial  for  the  purpose  of  using,  509. 
writ  of  error,  653,  GG2,  GG7,  G74. 
defendants,  damages  against,  5GG. 
JUDGE, 

dissatisfaction  of — verdict  against  evidence,  487. 
as  to  damages,  5G7. 
mandamus  to,  774  n. 
JUDGMENT, 

effect  of  new  trial  on,  74. 
injunction  of,  588. 
error  of — writ  of  error,  624. 
final,  on  writ  of  error,  634. 
suit  on,  after  writ  of  error,  656. 
appeal  requires,  712. 
JUDICIAL 

matters,  certiorari  applies  to,  689. 
proceedings — appeal,  710,  714. 

mandamus,  774  n.,  780,  783. 
JURISDICTION, 

in  case  of  certiorari,  690. 

appeal,  731,  742  n. 
JUROR, 

communication  by,  to  others,  213. 
JURY, 

Qiisconduct  of,  must  have  caused  injury,  51. 
objection  to,  waiver  of,  82. 
only  questions  of  fact  are  for  the,  312. 
rights  and  duties  of,  as  to  the  law,  upon  indictments,  314. 
discretionary  rulings  as  to,  391. 
judgment  of,  as  to  damages,  571. 
constitutional  right  of  trial  by,  705. 
grounds  of  new  trial  connected  with,  121. 
general  grounds — irregularity  and  injustice,  121. 
general  and  special  verdicts,  127. 

form  of  verdict — uncertainty,  generality,  inconsistency,  &c.,  133. 
amendment  of  verdict;  sending  back  of  jury;  remittitur,  148. 
irregularities  connected  with,  as  grounds  of  new  trial,  154. 
general  principle,  154. 
presumption  of  competency,  154. 
challenge,  155. 

agreement  of  jury ;   mode  of  proof  on   the  subject;    affidavits; 
mode  of  arriving  at  the  verdict,  &c.,  157. 


INDEX.  815 

JURY,  continued. 

incompetency  of  juror,  162,  1G6. 

swearing,  164. 

aliens,  167. 

drawing  and  impanelling,  168. 

misnomer,  170. 

talesmen,  173. 

change  of  jurors,  174. 

partiality ;  preconceived  opinion ;  examination  on  voir  dire,  kc, 
175. 

relationship,  187. 

other  connections  with  a  party,  190. 

interest ;  inhabitants  of  a  county  or  town ;  members  of  an  asso- 
ciation ;  miscellaneous  cases,  190. 

opinions  of  juror;  conscientious  scruples,  193. 

misconduct  of,  198. 

eating  and  drinking,  198. 

sleep,  201. 

conversation  ;  statements  of  one  juror  to  the  others,  202. 

custody  of  the  jury,  214. 

introduction  of  papers  to  the  jury-room ;  minutes,  books,  depo- 
sitions, &c.,  214. 

further  instructions  to  the  jury,  222. 

arguments  to  the  jury,  224. 

separation  of  the  jury,  232. 

affidavits  of  jurors,  239. 
JUSTICE 

done,  whether  new  trial  in  case  of.     (See  Injury,  Substantial, 
Surprise.) 

of  the  peace — certiorari,  696,  697. 
appeal,  701. 
jurisdiction  of,  iu  case  of  appeal,  733. 


LACHES.     (See  Waiver,  Delay.) 

iu  case  of  surprise,  560. 
certiorari,  698. 
LAND, 

description  of — law  and  fact,  340. 
LANGUAGE, 

verdict  against  evidence  in  reference  to,  476. 
LAW 

and  fact — waiver  of  objection  as  to,  99. 
distinction,  121,  272,  21S,  310. 


816  INDEX. 

LAAV,  continued. 

and  fact — undisputed  facts,  282. 

instruction  as  to,  -vvliat  it  includes,  283. 
wrongful  blending  of,  by  jury,  466. 

verdict  against,  486.     (See  Verdict.) 

mistake  of,  whether  a  surprise,  525. 

and  fact,  as  to  damages,  565. 
error  of,  626. 

questions  of,  in  certiorari,  601. 

and  fact,  revision  of,  security  in  case  of,  611. 
LEADING  QUESTIONS— 

discretion,  399. 
LIBEL, 

&c. — law  and  fact,  35,  354. 

damages  for,  581. 
LIMITATIONS— 

law  and  fact,  335. 
LOST  INSTRUMENT, 

construction  of — law  and  fact,  324. 
LOT, 

verdict  by,  160. 

M. 

MALICE— 

law  and  fact,  353. 
MALICIOUS  PROSECUTION, 

damages  for,  583.   . 
MANDAMUS,  774. 

definition,  &c.,  774. 

does  not  lie  in  case  of  other  remedies,  775. 

parties,  777. 

as  connected  with  appeal,  error,  &c.,  777. 

designed  to  compel  action,  780. 

lies  only  to  a  continuing  tribunal,  782. 

constitutional  questions,  783. 

in  reference  to  new  trial,  exceptions,  <fec.,  784. 

miscellaneous  cases,  785. 

and  error,  623. 

appeal,  704,  711,  714,  777. 
MARKING  BY  JURY.    (See  Jurj.) 

affidavit  of,  248. 
MATERIALITY 

of  instructions,  290. 

of  newly  discovered  evidence,  516. 


INDEX.  817 

MEASURE  OF  DAMAGES,  ' 

(lefiuite,  568. 
MINISTERIAL  ACTION— 

certiorari,  G89.  - 

and  appeal,  710,  720. 
MISCONDUCT 

of  jury,  154  n.,  155,  157,  198.     (See  Jury,  Injury,  Waiver.) 
as  to  agreement,  157. 

of  juror,  195. 
MISDIRECTION.     (See  Bulings.) 

must  distinctly  appear,  21. 

waiver  in  case  of,  96. 
MIS-ENTRY, 

appeal  in  case  of,  706. 
MISNOMER, 

writ  of  error  in  case  of,  668. 
MISTAKE 

of  juror,  affidavit  of,  248.     (See  Affidavit.) 

of  counsel,  whether  a  surprise,  553. 

injunction  for,  598. 
MIXED 

questions  of  law  and  fact,  310,  347. 
MOTION, 

to  show  cause  for  new  trial,  16. 

for  new  trial,  and  exceptions,  76  n. 

and  and.  que.,  764. 
MUTUAL  ACCOUNTS, 

injunction  in  case  of,  608. 

N. 

NAME 

of  juror,  error  in,  170. 

in  writ  of  error,  668. 
NECESSARIES— 

law  and  fact,  348. 
NEGLECT  OF  COUNSEL— 

surprise,  549. 
NEGLIGENCE.     (See  Laches,  Waiver.) 

law  and  fact  as  to,  355. 

prevents  new  trial  for  new  evidence,  495. 

in  case  of  surprise,  560. 

injunction,  589,  596. 
aud.  que.,  767. 

52 


818  INDEX. 

NKUI.IGENCE,  continued. 
ai)peal  in  case  of,  721. 
(laiiiujrcs  for,  .'379. 
NEW  TRIAL.     (See  Jury,  PadingR,  Evidence,  Verdict,  Nexohj-dis- 
covered,  &,-c.,  Sitrprise,  Damages.) 
and  mis-trial — distiuction,  211. 
error,  610,  701. 
appeal,  707  n. 
definition.  1. 
history.  2. 
importance.  4. 

mode  of  obtaining ;  discretion  ;  appeal ;  error,  &c.,  6. 
form  of  proceeding ;  rule  to  show  cause ;  bill  of  exceptions,  &c.,  IG. 
in  connection  with  other  forms  of  rehearing,  16. 

habeas  corpus,  19. 
grounds  of,  20. 

general  grounds — dehors  the  record,  20. 
verdict  presumed  correct ;  motion  for  new  trial  must 
show  affirmatively  the  ground  of  alleged  error,  20. 
qualifications  of  this  rule,  31. 

form  of  exceptions,  founded  upon  the  foregoing  rule,  33. 
amendment  of  bill  of  exceptions,  35. 
•     limitations  of  the  rule,  3.5. 

other  evidence  as  to  the  points  contained  in  the  bill 

of  exceptions,  36. 
motioai  in  arrest  of  judgment,  37. 
writ  of  error,  37. 

party  must  have  been  injured,  40. 
erroneous  ruling  of  the  court,  42. 
evidence,  44. 
jury,  51. 
surprise,  51. 
new  evidence,  &c.,  52. 
limitation  of  the  rule — it  must  ap-pear  that  no  injury 

has  been  done,  53. 
substantial  justice  done,  57. 
erroneous  rulings,  58. 
grounds  of,  substantial  justice,  60. 

errors  as  to  evidence,  60. 

verdict  against  evidence,  61. 

newly-discovered  evidence,  62. 

surprise,  62. 

damages,  63. 

limitations  of  the  rule,  63 


INDEX.  819 

NEW  TRIAL,  continued. 
terms  of  granting,  65. 

costs,  65. 

other  terms — new  trial  in  part — miscellaneous, 

68. 
form  of  action,  70. 
refusal  of  terms,  70. 

terms  imposed  upon  prevailing  party,  70. 
abandonment  of  exceptions,  73. 
nature  and  effect  of  the  motion  for,  and  the  granting  of;  points  of 

practice ;  successive  new  trials,  74. 
waiver  of,  82. 

general  rule,  82. 

incompetency,  »fec.,  of  jurors,  82. 
evidence,  88. 
written  evidence,  92. 
'miscellaneous  points  of  evidence,  95. 
erroneous  rulings,  96. 
surprise,  99. 
new  evidence,  102. 
excessive  damages,  102. 
miscellaneous  cases,  103. 
negligence  of  counsel,  105. 
waiver  in  respect  to  time,  105. 
in  criminal  cases,  91.  ' 

general  rule,  113. 
bill  of  exceptions,  114. 
whether  there  can  be  a  new  trial  after  acquittal ; 

constitutional  provisions,  115. 
or  even  after  conviction,  116. 
miscellaneous,  119. 
NEWLY-DISCOVERED  EYIDENCE, 
new  trial  for,  requires  injury,  52. 
where  substantial  justice  is  done,  62. 
equitable  injunction  for,  450,  465. 
new  trial  for,  491. 

general  rule,  491. 
remarks  of  courts,  493. 
diligence  must  be  proved,  495. 
forgetfulness,  498. 
documentary  evidence,  499. 
ignorance  of  counsel,  499. 
cumulative  evidence,  499. 


820  INDEX. 

NEWLY-DISCOVERED  EVIDENCE,  continued. 

cviilciice  to  impeach,  coutradict,  or  otherwise  affect 

a  witness,  505. 
questions  of  amount,  511. 

of  form,  512. 
to  prove  a  crime,  512. 
court  above,  512. 

form   of   application,  affidavits,  statement   of   evi- 
dence, hearsay,  &c.,  514. 
materiality  and  credibility,  516. 
NEWSPAPER, 

reading  of,  by  juror,  219. 
jury,  251. 
NOMINAL  DAMAGES,  572. 

instructions  in  case  of,  344. 
NONSUIT, 

•waiver  of  objection  to,  98. 
refusal  of — discretion,  393. 
surprise  by,  549. 
error  in,  027. 
in  case  of  appeal,  596. 
NOTICE— 

law  and  fact,  339. 
for  trial — surprise,  530. 
want  of,  writ  of  error  for,  652. 
of  appeaX  703. 
NUMBER 

of  jury,  160. 

of  witnesses — verdict  against  evidence,  464. 

0. 
OATn  OF  JURY,  164. 
OFFICER, 

disqualification  of,  as  to  jury,  168. 

communication  of,  with  jury,  214. 
OMISSION 

of  instructions,  257,  377,  385. 
OPEN  AND  CLOSE, 

right  to— discretion,  390,  404. 
OPINION 

of  juror,  175. 

of  judge  as  to  facts,  273,  286,  287,  385. 

instructions  as  to,  368. 

evidence  of,  432. 


INDEX. 


821 


ORAL  CONTRACT, 

construction  of — law  and  fact.  322. 
ORDER  OF  TESTIMONY,  393,  403,  437. 


PAPERS, 

improper  use  of,  by  jury,  214,  222. 
surprise  in  case  of,  .546,  558. 
return  of,  on  appeal,  754. 
PART 

of  case,  new  trial  as  to,  69. 

instructions  as  to,  293. 
of  evidence,  incompetent,  420,  423,  436. 
injunction  in,  606. 
PARTY, 

evidence  may  come  from  either,  432. 
in  writ  of  error,  661. 
certiorari,  696. 
PARTIES, 

joint— form  of  verdict,  139,  145,  146,  147,  151,  152. 
in  case  of  injunction,  610. 
PARTIAL  NEW  TRIAL— 

damages,  576. 
PARTIALITY  OF  JUROR,  175, 189. 
PARTNERSHIP— 

law  and  fact,  346. 
PATENT, 

construction  of  terms  of,  328. 
PAYMENT— 

law  and  fact,  335. 
injunction  in  case  of,  605. 
aud.  que.,  770. 
PENAL  ACTION, 

verdict  against  evidence  in,  481. 
PERJURY, 

newly-discovered  evidence  of,  508. 
PERVERSE  VERDICT,  480. 
PETITION  IN  CERTIORARI,  697,  698. 
PLAINTIFF, 

verdict  against,  in  a  clear  case,  468. 
for,  in  a  clear  case,  470. 
PLEADINGS, 

new  trial  in  connection  with,  27. 
form  of  verdict  in  reference  to,  136. 


822  I^'DEX. 

PLEADINGS,  continued. 

instructions  based  upon,  308. 

evidence  as  connected  with,  429. 

verdict  against  evidence  in  connection  with,  446. 

surprise  in  connection  with,  548. 

in  case  of  injunction,  598,  G09. 

writ  of  error  as  to,  G30,  638. 

in  certiorai'i,  697,  698. 
aucl.  que.,  772. 
mandamus,  777. 
POLL  OF  JURY,  227. 

right  to  denaand,  158. 
PRACTICE, 

new  trial  for,  2,  and  n. 

matters  of,  rulings  as  to,  38  9*. 
PREJUDICE  OF  JUROR,  175,  189- 
PRELBIINARY 

rcmarlis  of  judge,  284. 

facts — for  the  court,  312. 
PREPONDERANCE 

of  evidence,  verdict  against,  458. 
PRESUMPTION, 

of  correctness  of  vierdiet,  20. 

instruction  as  to,  284,  306, 

of  paymeut — law  and  fact,  335- 

on  writ  of  error,  645, 
PRESUMPTIVE  EVIDENCE— 

verdict  against  evidence,  473. 
PRIVIES, 

writ  of  error  in  case  of,  G65i. 
PROBABILITY, 

instructions  as  to,  371. 
PROBATE  COURT— 

writ  of  error,  62:3. 
PROCEDENDO 

and  writ  of  error,  C23. 
PROCEEDINGS, 

error  of,  624. 

PEoniBrnoN 

and  writ  of  error,  623. 

and  appeal,  704. 
PROVOCAITLON— 

law  and  fact,  344. 
PURCHASER, 

writ  of  error  by,  G64» 


INDEX.  823 


QUALIFICATIONS 

of  juror,  154,  162,  1G6. 

and  exemption — distinction,  164. 
QUASHING  OF  WRIT  OF  ERROR,  669. 
QUESTION,  ^ 

incompetent,  417 
QUIA  TIMET— 

aud.  que.,  767. 

R. 

REASON  OF  INSTRUCTION,  261. 
REASONABLE  TIME— 

law  and  fact,  331. 
REASONABLENESS 

of  usage — law  and  fact,  330. 

law  aud  fact  as  to,  331. 
RECALLING  A  WITNESS— 

discretion,  401. 
RECORD, 

use  of,  by  jury,  219. 
.  construction  of — law  and  fact,  323. 

must  show  error,  on  writ  of  error,  640. 
RECOLLECTION  AND  DISCOVERY- 

distinction,  in  reference  to  new  evidence,  498. 
REFEREE, 

award  of,  against  evidence,  486. 
REFERENCE, 

error  in  case  of,  654. 
REFUSAL 

of  abstract  instruction,  260. 

of  comment  upon  evidence,  291. 
REHEARING, 

diiferent  forms  of,  16. 
RELATIONSHIP 

of  juror,  164,  187. 

of  officer  to  juror,  164. 
RELEASE  OF  ERRORS,  671. 
REMANDING, 

on  appeal,  745. 
REMEDIAL, 

writ  of  error  is,  627. 
REMITTITUR,  l'52,  576. 


824  INDEX. 

REPORT  OF  EVIDENCE, 

for  new  trial,  IG  n. 

in  case  of  verdict  against  evidence,  454. 
RES  JUDICATA, 

prevents  injunction,  G07. 
RESTITUTION, 

upon  writ  of  error,  679. 
RETURN  UPON  CERTIORARI,  692. 
REVIEW  AND  NEW  TRIAL,  17. 
RULING, 

erroneous — surprise,  554. 
RULINGS  OR  INSTRUCTIONS, 

as  ground  of  new  trial,  254. 

general  rule,  254. 


omissions,  257. 

immaterial  or  irrelevant  instruction,  260, 
290,  304. 

ambiguity,  263. 

conflicting  instructions,  264. 

misunderstood  instructions,  264. 

instructions  construed  together,  266. 

adoption  of  language  of  the  court  above, 
270. 

uncertainty,  257. 

law  and  fact,  272. 

refusal  or  granting  of  a  nonsuit,  274,  317. 

ruling  by  which  evidence  was  rendered 
unnecessary,  277. 

as  to  sufiSciency  or  insufficiency  of  evidence, 
278. 

conflict  of  evidence,  or  the  reverse,  279. 

tendency  and  ejff'ect  of  the  evidence,  283, 
314,  361. 

instructions  as  to  the  law — limitations,  282. 

preliminary  remarks,  &c.,  to  the  jury  ;  com- 
ments upon  the  evidence  ;  illustrations, 
284. 

materiality  of  the  remai-ks,  290. 

refusal  to  comment  upon  the  evidence,  290. 

exceptions  to  the  prevailing  rule;  erro- 
neous interference  with  the  facts  and 
evidence,  289. 

instructions  as  to  only  part  of  the  case,  293. 
based  on  the  evidence,  295. 


INDEX. 


825 


RULINGS  OR  INSTRUCTIONS,  contiimed. 

as  ground  of  uew  trial,  abstract  instructious,  305. 
miscellaneous  points,  305. 
presumptions  from  facts  proved,  306 
instructions  as  affected  by  the  pleadings, 

308. 

in  reference  to  tlie  arguments,  309. 

miscellaneous,  309. 

questions  of  law  and  fact,  310. 

undisputed  facts ;  questions  of  law,  312. 

weight  of  evidence,  &c.,  for  the  jury, 
314. 

law  and  fact  in  criminal  cases,  314. 

absence  of  evidence  ;  questions  of  law,  non- 
suit, 317. 

construction  of  written  and  oral  contracts, 

318. 
legality  of  contracts,  323. 
records,  323. 
contracts  and  writings,  when  questions  of 

fact;  mixed  questions  of  law  and  fact, 

324. 
usage,  330. 
reasonableness,  330. 
payment,  335. 
limitation,  336. 
usury,  336. 
notes,  &c.,  337. 
miscellaneous  contracts,  337. 
notice,  337. 

questions  relating  to  land,  340. 
delivery,  344. 

state  of  mind  ;  intention,  344. 
miscellaneous,  346 

mixed  questions ;  miscellaneous,  347. 

fraud,  349. 

malice,  353. 

libel,  &c.,  354. 

malicious  prosecution,  354. 

negligence,  &c.,  355. 

nuisance,  359. 

cruelty,  361. 

waiver,  361. 


826  INDEX. 

e 
RULINGS  OR  INSTRUCTIONS,  continued. 

as  ground  of  new  trial ;  credit  of  witness,  &c.,  and  other  points  re- 
lating to  testimony;  weight  of  evidence; 
comparative  weight  of  different  kinds  of 
evidence,  361. 
communications  of  the  judge  to  ilie  jury 

out  of  the  regular  course,  371. 
time  of  objecting  to  instructions,  37.5. 
instructions  as  to  costs  and  damages,  376. 
request  for  instructions,  377. 
form  of  instructions,  380. 
cases  of  discretion,  389. 

general  rule — examples,  389. 
order  of  testimony;  examination  of  witnesses; 
depositions;  recalling  witness;  leuiling  (jues- 
tions,  393. 

S. 

SCIENCE, 

terms  of,  construction  of,  326. 
SCIRE  FACIAS 

and  writ  of  error,  622  n. 
SEALED  VERDICT,  238. 
SECURITY, 

in  case  of  error,  65.5. 
appeal,  758. 
SEDUCTION, 

damages  for,  585. 
SENDING  BACK  OF  JURY,  148,  1.51. 
SEPARATION  OF  JURY,  229. 
SERVICE, 

writ  of  error  in  relation  to,  652. 
SET-OFF, 

rejection  of,  442. 

injunction  in  case  of,  607. 
SICKNESS, 

surprise  by,  528. 
SLEEP  OF  JUROR,  20L 

SPECIAL  AND  GENERAL  VERDICTS,  126  and  n. 
SPIRITS, 

use  of,  by  jurors,  189. 
STATE. 

new  trial  in  favor  of,  101. 


INDEX. 

STATE,  conlimied. 

— ^jurisdiction,  injunction  in  reference  to,  593. 
appeal  by,  751. 
STATEMENT 

of  facts  by  judge,  286. 
STATUTE 

of  limitations — law  and  fact,  335. 
appeal  depends  on,  708,  709. 
SUBSTANTIALLY 

correct  instructions,  266. 
SUBSTANTIAL  JUSTICE. 

no  new  trial  in  case  of,  57. 
SUBSTANCE 

of  instructions,  384. 
writ  of  error  requires,  638. 
SUCCESSIVE 

new  trials,  78. 

verdicts,  whether  set  aside  as  against  evidence,  477. 

new  trials,  in  case  of  surprise,  523. 

excessive  damages,  564. 
injunctions,  595. 
writs  of  error,  680. 
SUMMONS  AND  SEVERANCE, 

in  case  of  error,  663. 
SUMMONING  OF  JUROR,  168. 
SUPERSEDEAS 

in  case  of  error,  655. 

certiorari,  690. 
appeal,  759. 
SURETY, 

payment  by — law  and  fact,  335. 
in  case  of  injunction,  612. 
SURPRISE, 

new  trial  for,  521. 

general  rule,  521. 

in  criminal  cases,  522. 

second  motion  for  new  trial.  523. 

discretion — court  above,  523. 

for  cause  arising  after  verdict,  523. 

justice  done,  524. 

laches,  524. 

terms,  524. 

concurrent  with  other  grounds,  524. 

threats,  &c.,  preventing  a  defence,  525. 


827 


828  INDEX. 

SURPRISE,  continued. 

new  trial  for  mistake  of  law,  525. 

ignorance  of  fact,  52G. 

sickness,  527. 

absence  of  party,  528. 

erroneous  notice  for  trial,  530. 

premature  trial,  534. 

absence,  etc.,  of  witness,  53G. 

testimony  given  or  omitted,  539. 

want  of  preparation,  542. 

rejection  or  admission  of  evidence,  543. 

credibility  of  witness,  543. 

misconduct  of,  or  tampering  with,  witness,  544. 

papers,  544. 

pleadings,  548. 

perjury,  549. 

nonsuit,  549,  555. 

absence,  &c.,  of  counsel,  549. 

delay,  withdrawing  juror,  555. 

default,  555. 

waiver,  556. 

depositions,  &c.,  558, 

affidavits,  559. 

delay  in  motion,  560. 

party  must  be  injured,  51. 
waiver  in  case  of,  99. 
an  equitable  ground  of  new  trial,  588. 
injunction  for,  588  n. 
certiorari  for,  698. 
SWEARING  OF  JURY,  164. 

T. 

TALESMEN,  173. 

TAMPERING  WITH  JURY,  187. 

TECHNICAL  TERM, 

judge  must  define,  348. 
TENDENCY 

of  evidence,  instructions  as  to,  295,  303. 

and  weight  of  evidence — distinction,  283. 
TENDER, 

aud.  que.  in  case  of,  770. 
TERMS 

of  new  trial,  65. 

for  surprise,  524. 


INDEX. 

TERMS,  .contmued. 

of  injunction,  593. 
TESTIMONY, 

order  of,  393,  403,  437. 
surprise  as  to,  528. 
THEORETICAL  INSTRUCTION  TO  JURY,  2G0. 
TIME, 

of  admitting  evidence,  46,  393,  403,  417,  423,  429,  436. 
in  reference  to  new  trial,  106. 
of  instructions  to  jury,  371. 
of  objecting  to  evidence,  423. 
of  trial,  surprise  as  to,  534. 
in  case  of  injunction,  595. 
of  dismissal,  on  appeal,  597. 
TITLE, 

question  of — appeal,  706. 
TOSSING  UP.     (See  Jury.) 

affidavit  of,  245. 
TOWN, 

juror  in  case  of,  190. 
TRESPASS 

qu.  cl.,  damages  for,  584. 
TRIAL, 

time  of,  surprise  as  to,  534. 
of  what,  on  appeal,  737. 
TRIFLING  CASES— 

verdict  against  evidence,  482. 
TRUST, 

in  case  of  injunction,  613. 
TRUSTEE, 

appeal  in  case  of,  751. 


U. 


UNDERSTANDING 

of  instructions  by  jury,  264. 
UNFAITHFULNESS, 

law  and  fact  as  to,  356. 
USAGE, 

question  of — law  and  fact,  330. 
USURY, 

injunction  for,  617. 


829 


830  INDEX. 


VARIANCE, 

a  (juestiou  of  law,  312. 
writ  of  error  for,  G31. 
in  case  of  appeal,  741. 

veri)k;t, 

general  grounds  of  new  trial  as  to,  121. 

form  of,  133. 

amount  of,  148,  151,  152. 

condition  in,  152.  ' 

against  law,  121. 

agreement  in.  157. 

grounds  of,  inquiry  as  to,  250. 

and  judgment,  upon  writ  of  error,  624. 

against  evidence,  new  trial  for,  444. 

general  rule,  444. 

pleadings — variance,  446. 

by  court  above,  446. 

additional  grounds,  448. 

in  reference  to  a  particular  fact, 

448. 
limitations  of  the  rule;    the  case 

must  be  strong,  449. 
deficiency  of  evidence,  452. 
court  above,  453. 
report  of  the  evidence,  454. 
preponderance  of  evidence ;  weight 
of  testimony;  credibility  of  wit- 
nesses; case  passed  upon  by  the 
jury ;  improper  bias,  ifec,  456. 
absence  of  evidence,  461. 
balance   of    testimony ;    credit  of 

witnesses,  461. 
number  and  relation  of  witnesses, 

464. 
misunderstanding  of  the  case,  465. 
verdict   founded   upon   some  evi- 
dence ;   upon   vague  and  suspi- 
cious evidence,  466. 
verdict  for  the  defendant  without 

evidence,  468. 
for  the  plaintiff  without  evidence, 
470. 


INPEX. 


831 


VERDICT,  continued. 

against  evidence,  new  trial  for,  for  the  plaintiff  against  clear  evi- 
dence for  the  defendant,  471. 

circumstantial  evidence,  473. 

evidence  by  inspection,  476. 

in  reference  to  language,  476. 

successive  verdicts,  477. 

demurrer  to  evidence,  579. 

perverse  verdict,  480. 

in  what  cases,  480. 

criminal    cases;      penal     actions; 
fraud,  480. 

substantial  justice,  367. 

trifling  cases,  482. 

no  benefit  to  the  party,  483. 

trial  by  the  court ;   verdict  by  con- 
sent ;  award,  484. 

questions  of  law,  486. 

verdict  satisfactory  or  otherwise  to 
the  judge,  487. 
and  for  excessive  damages— connection,  561  n., 

567. 
VINDICTIVE  DAMAGES,  572. 
VOID  APPEAL,  719. 
VOLENTI  iXON  FIT  INJURIA— 
writ  of  error,  637. 

W. 

WAIVEE.     (See  Neio  Trial,  Waiver  of.) 
as  to  jury,  160,  238. 

misconduct  of  jury,  218. 
law  and  fact  as  to,  361. 

as  to  evidence,  442,  556.  * 

ill  case  of  excessive  damages,  566. 
of  appeal,  721. 
WEIGHT 

of  evidence.     (See  Verdict.) 

error  as  to,  must  ap^Tcar,  29,  32. 
in  connection  with  instructions,  255. 
and  tendency  of  evidence — distinction,  283. 
of  evidence,  instructions  as  to,  366. 


832  INDEX. 

WITNESS, 

waiver  of  objection  to,  89. 
■whether  juror  may  be,  191. 
credit  of,  instruction  as  to,  3G2. 
discretionary  rulings  as  to,  393. 
newly-discovered,  must  be  credible,  519. 
disqualification,  absence,  &c.,  of — surprise,  53G,  538. 
WRIT  OF  ERROR,  618. 

general  remarks  ;  peculiarities  of  American  law,  619. 

nature  of  a  writ  of  error,  619. 

ex  dehito  justitice,  C20. 

a  new  action,  620. 

and  motion  in  arrest  of  judgment,  620. 

judgment  must  be  according  to  the  course  of  the  common  law, 

620. 
qualifications  of  this  rule,  621. 
special  proceedings — whether  eiTor  lies,  623. 
grounds  of  the  writ,  623. 
mere  irregularity,  623. 

whether  for  acts  after  judgment ;  executions,  623. 
error  oi  foundation,  proceeding,  or  judgment,  624. 
error  coram  nobis  or  coram  vobis,  625. 
error  oHaio  and  of  fact,  626. 
a  remedial  process;  construction  of  statutes,  627. 
cases  of  discretion,  628. 

questions  of  amonnt;  ad  damnum,  interest,  costs,  &c.,  629. 
defects  in  the  declaration  ;  variance ;  misjoinder,  &c.,  630. 
right  of  appeal,  whether  a  writ  of  error  lies  in  case  of,  631. 
the  judgment  must  be  final,  634. 
the  plaintiff  in  error  must  have  been  injured  by  the  judgment; 

voluntary  nonsuit,  &c.,  40  n.,  637. 
the  error  must  be  substantial,  not  merclj  formal ;  limitations 

and  qualifications  of  the  rule ;  judgment  in  favor  of  the  plain- 
tiff in  error,  638. 
the  error  must  appear  upon  the  record ;   what  constitutes  the 

record;  papers  used  or  filed,  parol  evidence,  &c.,  640. 
the  error  must  appear  affirmatively;  judgment  presumed  to  be 

correct,  645. 
when  the  right  to  a  writ  of  error  is  tvaived,  647. 
error  in  case  of  default,  651. 
for  want  of,  or  defect  in,  service  of  the  writ ;  joint  defendants,  &c., 

652. 
in  case  of  arbitration,  654. 


INDEX.  833 

WRIT  OF  ERROR,  continued. 

effect  of  a  writ  of  error  upon  the  judgment  and  the  rights  of  the 
parties  ;  supersedeas  of  execution,  &c.,  655. 

course  of  proceeding  upon  a  writ  of  error;  assujnment  of  errors  ; 
allegations  of  the  writ,  &c.,  656. 

parties ;  must  be  interested  ;  joint  parties ;  in  case  of  death  ;  pur- 
chasers, creditors,  agents,  &c.,  661. 

summons  and  severance,  663. 

misnomer,  668. 

service  of  writ  of  error,  668. 

defences  ;  dismissal ;  in  nullo  est  erratum  ;  release  of  errors,  669. 

judgment  upon  a  writ  of  error;  reversal  in  part;  remanding  of 
the  case,  and  proceedings  of  the  court  below;  miscellaneous 
points,  672. 

successive  writs  of  error,  680. 

error  in  criminal  cases,  681. 
WRIT 

of  inquiry — evidence,  429. 

of  right,  certiorari  is  not,  689. 
error  is,  620. 
WRITTEN 

instructions  to  jury,  273  n.,  374,  386  n. 


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